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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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I 


*.. 


State  Trials. 


VOL.   XI. 


O  '     r 


COMPLET£?:MeO\i4LECTION 


•  •_ .  •  •  • 


State    Trials 

AND 

PROCEEDINGS   FOR   HIGH   TREASON   AND   OTHER 
CRIMES  ANP  MISDEMEANORS 

FBOM  THe 

EARUEST  PERIOD  TO  THE  PRESENT  TIME, 
WITH  KOTES  AJfD  OTHER   ILLUSTRATIOJTS 

COMPILED  BY 

T.  B.  HOWELL,  Esq.  F.R.S.  F.S.A. 


VOL.    XI. 
A.D.  1680—1688. 


LONDON: 

PRINTED  BY  T.  C  HANSARD,  PETERBOROUOH-OOUBT,  FLBET-STRBET: 

FOR  LONGMAN,  HUBST,  REE8,  ORME,  &  CO. }  J.  RICHARDSON ;  BLACK, 

PARRY,  &  KINGSBURY;  J.  HATCHARD;  E.  LLOYD;  J.  BUDD; 

J.  FAULDER;  J.  BOOKER ;  CRADOCK  &  JOY ;  E.  JSFFEIlY; 

}.  BOOTH;  AND  T.  C.  HANSARD. 

laii. 


1 ''>•'>••' 


TABLE  OF  CONTENTS 


TO 


VOLUME  XL 


%♦    The  new  ArHcles  are  mariei  [N.] 

Pag€ 
J25.    PftOCBEMNes  ^g^ltat  HERlWkS  OP  tfifi  SfitftEOF  FIFE, 
for  Absetrcfe  from  the  Kitig's  Host,  a.  d.  IBSO.    t^ow  first  printed 
from  the  Records  of  Justiciary  in  Edinburgh]  [N.] ^ ;.••«        1 

826.  ProoeediBgs  against  THE  00{U90NS,  of  Eartestooki,  ^itA  xStb^ftn,  for 
Treason,  a.  d.  1680.  [Now  first  printed  from  the  Records  of  Jus- 
ticiary in,l^cot1and]  [N.]   ...•*. ^ 46 

3S7.  Proceedings  against  JOHN  Lord  BARGENY,  for  Treason,  a.  d. 
1680.  [Now  frrst  printed  from  the  Records  of  Joi(ticiary  in  iScot* 
land]  [N.)  : 6S 

926.  Vrocetidings  upon  a  Proceis  cff  Bn-cfr,  rftkad  «gainit  KkLEXANDER 
BLAIR  and  eihen,  ibr  the  Mqnktal  «€  Jmntii  Didc  Md  others, 
indicted  for  Treason  and  Rebellion,  a«  d.  168L.  [Now  first 
printed  frotn'tha  Recofdn  tf  Jiirfliiehry  ki  i^inbtirgh']  fN.]  ••••••      tB 

i^.    Proceedings  against  CHARLES  Earl  of  LAUDERDALE.  RICHARD 
Lord  MAITLANDUslSoti,  and  others,  for  Offlsial  Maltvmlbns  ^ 
respeciiiig  the  Boyal  Mint  of  Scotoid^  a.  t.  l€6a«l6ffS.    [Now 
first  printed  from  tiie  Prify  Cdmcal  Books  ait  XdinbQr|;hij  .[N.]...     Ibt 

330.  Pffooeedtnga  agabst  SEVERAL  RffifiDHB.  OF  iAtWSKSOHCE, 
tot  Treaaon,  a.  »•  1081.  (NM^itt  pniled(ftt>tn  ill*  Secoids  of 
Justiciary  at £dini>«rgh||  £N.j  •%v»4««M«<«««M*«*^«*««v»tf#««v»^*«««A..««    9i6 


TABLE  OF  €ONTBNTO. 

Page 
SSI.    The  Trial  of  the  Lady  AUCE  LTSLE,  at  WintOB,  for  High  Tlreasoo, 

A.  o.  1685    298 

m.  Trial!  of  JOHN  FERNLEY,  WttLIAM  RING,  EUZ.  GAUNT, 
and  HENRY  CORNISH,  esq.  at  the  Old  Bailey,  for  High 
TreaioD,  a.d.  1685 382 

REMARKS  upon  Mr.  CORNISH'S  Trial,  by  Sir  John  Hawlbs, 
Solicitor-General  in  the  Reign  of  King  William  the  Third  •••    455 

333.  The  Trial  of  WILLIAM  DISNEY,  esq.  by  the  King's  Special  Com-. 

mission  of  Oyer  and  Terminer,  held  at  the  Marshalsea  in  Soath- 
wark,  for  High  Treason,  a.  d.  1685 468 

334.  The  Trial  of  CHARLES  BATEMAN,  Surgeon,  at  the  Old  Bailey, 

for  High  Treason,  a.  d.  1685  .....•..•• 467 

REMARKS  on  the  Trial  of  Mr.  CHARLES  BATEMAN. 
By  Sir  Jobm  Hawlbs,  Solicitor-General  In  the  Reign  of  King 
William  the  Third * 474 

335.  The  Trial  of  JOHN  HAMPDEN",  esq.  at  the  Old  Bailey,  for  High 

Treason,  a.  d.  1685 • ., , 479 

336.  Proceedings  aga'mst  RICHARD  BAXTER,  Clerk,  for  a  seditious 

Libel,  at  Gaildhall,  before  Ix>rd  Chief  Justice  Jeffreys,  a.  d.  1685    49/ 

337.  The  Trial  of  ROBERT  FRANCES,  Gent,  for  the  Murder  of  Thomas 

Dangerfield,  at  Jastice-Hall  in  the  Old-Bailey,  before  the  Right 
Hon.  Sir  James  Smith,  knt  Lord-Mayor  of  London,  Sir  Thomas 
Jenner,  knt.  Recorder  of  the  said  City,  and  one  of  his  Majesty's 
SerjeanU  at  Law,  and  <»tbers  his  Majesty's  Justices,  a.  d.  1685  ... 

338.  The  Trial  of  HENRY  Lord  DELAMERE,  in  the  Court  of  the  Lord 

High  Steward,  at  Westminster,  for  High  Treason,  a.  d.  I686 

339.  Proceedings  in  Parliament  against  THOMAS  Earl  of  DANBY,  Lor 

High  TVeasorer  of  England,  upon  an  Impeachment  of  High  TVe. 
son,  and  other  High-Crimet  and  Misdemeanors,  a.  d.  1678-1685 

840.    PxM»edings  against  RICHARD  RUMBOLD,   for  High.Trea» 
A.  D.  1685.    iNow  fint  priolwl  fw>«  the  Records  of  Priry  Ow 
andConctiof.JiiiticiaKy.atSdinbii^^J  C^O  ••*« •••«»•«. 


TABLE  OF  CONTENm 


345. 


347. 


348. 


349. 


P^ 


341.  Proctedings  against  THOMAS  ARCHER,  ALEXANDER  SHEILS, 

and  others^  for  Treason,  a.  d,  ]6S5.     [Now  firtt  published  from 

the  Records  of  Justiciary  in  Edinburgh]  [N.] .,., „     ggQ 

342.  Proceedings  agaiiist  SEVERAL  PERSONS  OF  GALLOWAY,  for 

Treajion,  a.  d,  1<5b2.     [Now  first  printed  from  the  Records  of  Jus- 
ticiary at  Edinburgh]  [N.]    „,....»...*..,.., ........*. «,..«.     910 

343.  Proceedings  against  JOHN  SEMPLE,  JOHN  WATT,  and  GA- 

BRIEL THOMPSON,  for  Treason,  a,  i>.  1614-,     [Now  first  pub- 
lished from  the  Records  of  Justiciary  at  Edinburgh]  [N.] „„     950 

Proceedings  against  DENHOLME  of  Westshiels,  and  othert,  for 
Treason  and  Reset  of  Traitors,  a.  n.  J  685.  [Now  first  printed 
from  ihe  Records  of  Justiciary  at  Edinburgh]  [N,] gfff 


Trial  of  DAVID  MOWBRAY,  for  a  Tumult  within  Burgh,  a.  o, 
IGB^,  [Now  first  printed  from  the  Records  of  Justiciary  at  Edin- 
burgh]  [N.].. 1003 

Trial  of  ALEXANDER  KEITH,  for  Sedition,  Mutiny,  and  Tumult, 
m  Burgh,  a.  d.  \f>U6.  [Now  first  printed  from  the  Records  of 
Justiciary  at  Edinburgh]  [N.]  «•«». 1018 

Proceedings  against  JAMES  sometime  Duke  of  BUCCLEUGIl  (and 
MONMOUTH).  Sir  JAMES  DALRYMPLE  of  STAIR,  AN- 
DREW  FLETCHER  of  Salioun,  and  others,  for  High  Treason 
and  Rtbellion,  a.  0.  ia85-l6S6.  [Now  first  printed  from  the 
Records  of  Justiciary  in  Edinburgh]  [R] 1023 

Proceedings  against  GILBERT  BURNET,  D.  D*  afierwards  Bi.shop 
of  Salisbury,  for  High  Treason,  a.  d.  1CJ87  [N.)    •. 1I03 


Proceedings  against  Dr.  HENRY  COMPTON,  Lord  Bishop  of 
^^^  London,  in  the  Council-Chamber  at  Whitehall,  by  the  Lords  Corn- 
^^m  miisioners  appointed  by  his  Majesty  to  innpect  Ecclesiastical 
^^B  Afiiiirs,  for  not  suspending  Dr.  John  Sharp,  Rector  of  St.  Giles's, 
^P  A.  D.  1686 1123 

r  350.    T 


The  Trial  of  Sir  EDWARD  HALES,  barf,  for  neglecting  to  take  the 
Oaths  of  Supremacy  and  Allegiance;  with  his  Plea  thereto,  upon 
the  King's  diipens'mg  with  the  Stat.  25  Car.  2,  and  the  Opinion  of 
the  Judges  thereupon,  A.  p.  1635   ••.«t**».4*«**»**«* #  U6S 


TABLE  OF  CONTENTS. 

Pagf 
SSI.    The  IVial  of  the  Lady  ALICE  LTSLE^  at  Winton,  for  High  TreaioD, 

A.  D.  1685 SSi 

332.  Trials  of  JOHN  FERNLEY,  WILUAM  RING,  EUZ.  GAUNT, 
and  HENRY  CORNISH,  esq.  at  the  Old  Bailey,  for  High 
Treason,  a.d.  16B5 S8S 

REMARKS  upon  Mr.  CORNISH'S  Trial,  by  Sir  John  Hawlbs, 
Solicitor-General  in  the  Reign  of  King  William  the  Third  •••    45! 

533.  The  Trial  of  WILLIAM  DISNEY,  esq.  by  the  King's  Special  Coai-> 

mission  of  Oyer  and  Terminer,  held  at  the  Marshalsea  in  Sooth- 
wark,  for  High  Treason,  a.d.  1685 iSt 

534.  The  Trial  of  CHARLES  BATEMAN,  Surgeon,  at  the  Old  Bailey, 

for  High  Treason,  a.  d.  1685 ^ 46: 

REMARKS  on  the  Trial  of  Mr.  CHARLES  BATEMAN. 
By  Sir  John  Hawlbs,  Solicitor-General  in  the  Reign  of  King 
William  the  Third  # 47' 

3S5.    The  Trial  of  JOHN  HAMPDEN',  esq.  at  the  Old  Bailey,  for  High 

Treason,  a.d.  1685 47j 

SS6.    Proceedings  against  RICHARD  BAXTER,  Clerk,  for  a  seditious 

Libel,  at  Guildhall,  before  Lord  Chief  Justice  Jefireys,  a.  d.  1685    49^ 

S37.  The  Trial  of  ROBERT  FRANCES,  Gent,  for  the  Murder  of  Thomas 
Dangerfield,  at  Justice-Hall  in  the  Old-Bailey,  before  the  Right 
Hon.  Sir  James  Smith,  knt.  liOrd-Mayor  of  London,  Sir  Thomas 
Jenner,  knt  Recorder  of  the  said  City,  and  one  of  his  Majesty's 
Serjeants  at  Law,  and  others  his  Majesty's  Justices,  a.  d.  1685  ...    50; 

SS8.    The  Trial  of  HENRY  Lord  DELAMERE,  in  the  Court  of  the  Lord 

High  Steward,  at  Westminster,  for  High  Treason,  a.  d.  1686 51< 

859.  Proceedings  in  Pariiament  against  THOMAS  Eari  of  DANBY,  Lord 
High  IVeasurer  of  England,  upon  an  Impeachment  of  High  IVea* 
son,  and  other  High-Crimes  and  Misdemeanors,  a.  d.  1678-1685      59! 

840.  Proceedings  against  RICHARD  RUMBOLD,  for  High-Treaaon, 
A.  n.  1685.  £Now  firsfc  printed  from  the  Records  of  Privy  CooDcil 
andCoortof  Justicisuy.atJBdiabarghJ  [N.]  ••^•••.•.•••«M«»M«k.»    87 


TABLE  OF  CONTENTS. 

Pag$ 
341.    Proctediogs  agaimt  THOMAS  ARCBER.  ALEXANDER  SHEILS, 

and  others,  for  Treason^  a.  d,  1685*     [Now  first  published  from 

the  Records  of  J uiiiciary  in  Edinburgh]  [N.] ggo 

12.    Proceedings  agamst  SEVERAL  PERSONS  OF  GALLOWAY,  for 
TreasoAj  a.  d,  l6SSf.     [Now  first  printed  from  the  Records  of  Jus- 
«v  ticiary  at  Edinburgh]  [N.]    , 9|0 

3*3.  Proceedings  against  JOHN  SEMPLE,  JOHN  WATT,  and  GA- 
BRIEL THOMPSON,  for  Treason,  a.  d.  1614.  [Now  first  pub* 
lished  from  the  Records  of  Justiciary  at  Edinburgh]  [N*] 950 

314*  Proceedings  against  DEN  HOLME  of  Westshiels,  and  others,  for 
Treason  and  Reset  of  Traitors,  a«  n.  1685*  [Now  fir^t  printed 
from  the  Records  of  Justiciary  at  Edinburgh]  [N.] ggff 

345.  Trial  of  DAVID  MOWBRAY,  for  a  Tumult  within  Burgh,  a.  o. 
)6B6.  [Now  first  printed  from  tlie  Records  of  Justiciary  at  Edin- 
burgh] [N.] 1003 

Trial  of  ALEXANDER  KEITH,  for  Sedition,  Mutiny,  and  Tumult. 
m  Burgh,  a.  d.  16H(}.  [Now  first  printed  from  the  Records  of 
Justiciary  at  Edinburgh]  [N.] IQ\% 

Proceedings  against  JAMES  sometime  Duke  of  BUCCLEUGH  (and 
MONMOUTH),  Sir  JAMES  DALRYMPLE  of  STAIR,  AN- 
DREW FLETCHER  of  Salioun,  and  others,  for  High  Treason 
and  Rebellion,  a.  i>.  1685-16S6.  [Now  first  printed  from  the 
Records  of  Justiciary  in  Edinburgh]  [N.]    •« .«.. *.,»    1033 

348.  Proceedings  against  GILBERT  BURNET,  D.  D.  afterwards  Bishop 

of  Salisbury,  for  High  Treason,  a.  o*  J687  [N]    1103 

349.  Proceedings  against  Dr.   HENRY  COMPTON,   Lord   Bishop  of 

London^  in  the  Council-Chamber  at  Whitehall,  by  the  Lords  Ce^m- 
missioners  appointed  by  his  Majesty  to  inspect  Ecclesiastical 
Afiairs,  for  not  suspending  Dr,  John  Sharp,  Rector  of  St.  Giles's, 
A.  D.  I6S6-... I  IfS 

360.  The  Trial  of  Sir  EDWARD  HALES^  barl.  for  neglecting  to  take  the 
Oaths  of  Supremacy  and  Allegiance;  with  his  Plea  thereto^  upon 
the  King's  diipens'mg  with  the  StaL  23  Car.  Q^  and  the  Opinion  of 
the  Judges  thereupon,  A.  D.  \^m  «**o. ...*•«.. 1160 


fABLB  OF  COKlCKia 

351.  ProcMfiBgt  fBin^  Mr.  JOHN  PBACHSLt,  Vic«4aMMltaf^  tnil 
the  UNIVBHSmr  OP  CAMBRIDGE,  fcr  sot  admitting  AHian 
Fraiicit,  »  Benedictime  Monk,  to  the  Dogroo  of  Maiter  of  Artt, 
April  and  May,  a.d«  1087 131 

S59.  The  ProeeediBga  agalnft  Mn  SAMUEL  JOBNSOI«,  who  was  tried 
at  the  King^srBeneh  Bar,  Westmiialec^  for  High  Mbdemeaiion 
(and  foand  gailt^  of  writing  and  pablishing  two  Beditions  and 
•candalooi  Libek  against  the  Gorernment)  a.d.  i0S6 139! 

3S»  The  Cape  of  WILLIAM  Barl  of  DEVONSHIRB,  oa  an  Information 
in  the  King's  Bench,  for  assaalting  Colonel  Calpepper  in  the 
Ktng'sPal»ce>  A.9.  1687    139^ 

a&i  The  Trial  of  PHIUF  STANDSFIELD,  Soato  Sir  James  Standifield, 
of  New-Milns  in  Scotland,  for  High  Treason,  the  Marder  of  his 
Father,  and  other  Crimes  libelled  against  him,  a.  d.  168«  137] 


1 


C  O  B  B  E  T  T'S 

COMPLETE     COLLECTION 


OF 


State  Trials. 


325.  Proceedings  against  Heritors  of  the  Shire  of  Fife,  for  Al 
sence  from  the  King's  Host:*  3'i  Charles  11.   a-d.  Ifi80| 
[Now  first  priuted  from  the  Records  of  Justiciary  in  Edii 
burgli,] 


Clru JusTtcutuc,  S.D.N,     ^'  I  ill 

Pneiorio  lltirfjri  tk*  Kilinbu  iiiio 

icrtif»  die  metJNi>i  Fehrtiarii,  1-.  l\  jjli'  ho- 

Icenzietie'^IVhet  JuMir  1*"m, 

Thomain  Wallace  do  ^  .iriie 

ClericuiOi  Jflrf>ltiuni  I'uti,.  ni  iMutoiin, 
Ri»i>rHmti  Nairn  iJe  Si nM I lunL  Jliivid«'«ii 
BaUbur  «lc  roiret,  Daviili^'in  I'nkonur  de 
NewtoiJti,  ol  lloi^*  runi  lfo^rt>^^,»  Iliirrairssj 

Regis. 

Curm   k'giltiitir   aiiiiuiutu, 

■     /ftiv*  <»r  Bnlliousio* 
Habfft  fiitmUton,  of  KttbracUmout 
'  JoTHts  Metritis  of  Cii&s'iufmy , 
jiierantkr  Durhamt^  of  Liirgp. , 
Captain  Gifiam  Murray ^  oCPItkeme^ 
Charifii  CimtiH,  orCorstoun. 
David  fiakant^uiN^  of  1  bat  llk» 
Aternntfer  A'winir,  of  Nuriif'uunli 
Jumci  YoMn4(,  of  Kirktfiun* 


^  Wodww  do 
lecuUon.     Him 

ccerliitt'-     "    

theK 

M     V 


Horn 


oiir   i  nil,  vfhicli  till 

iniikr  i:  i*alti'd  U»  the 

kiff^N  iiit^L  a  t'rtat    tnmt*j    and  ad   tfrrorem 
ptt^rf  puniHlinu'iil'i  arc  by  thewr  kwg  knit  to 
It ;  but  t  queiiiioal   if  for  ihefe  hnodredt  ar 
VOL.  XL 


Me,Af'     V;..-.    ' '"  Litlefreirioum. 
John  J. 

GtVrgt ,.r,        ^     ,- .      .l„ 

8ir  Jaf«^,*  :ihtctntr^  ot  Kinnaird* 
J< ) A  «  J 1 1  uu  It ,  of  1  n r!  n lert» ie. 

Brown ^  of  Phinnmnt. 

— —  Murrtt}/,,  of  pjtkH''li!e. 
Jfimt*  Kynnintnvnd,  ot  that  Hk, 
J  time*  U^et/mcM,  oi*ii\tt\i^\*y\in, 
Robert  Khttuil^  of  Uv 
iy\v  Jitrm,4  litwtf«irmt\  i*». 

John  Litid^iaif^  of  Do^\liilL 
David  Bcatan^  of  Dandon. 
WaiUr  Latif^  ol' Bnmtouiu 
— Balhntr^  of  Baibi rue- 
Sir  Joh''''-      rr,;^  of  FonUfif 
Rohcri  <!mtj  of  WmMlfeild. 

Ihnry  .:..,.,....,  :  urtioner^  ol'lwia{^borfi, 
Mr,  John  MitcheU^  of  Babaixlie. 
Mr,  Charier  WardifiJiCj  of  i«gti». 

InDYTED  and  accused,  Tliat  wlier,  no, 
wUli&iamUojf  be  tbe  laHes  and  acts  of  pnrUa- 
meutsof  tbis  kincfdome  and  con^ttunt  practoit^ 
iberaf,  the  reinainiii^  aod  abiding  frae  liia 

hundred  and  (lAv  years,  tbey  were  put  in  exe- 
cution, iiU  liovt  they  aie  advanced  hhhu  handl# 
a^iiiat  a  great  niuuy  pcraons,  vrbo  from  dif- 
fcreni  roaaoiis  came  uot  out  ag-aint^t  the  U'eat 
cotintry  army . 

^*  ^!'i tier*  were  laid  last  y*»ar  for  llim  pro* 
«f mition  ;  and,  itriU^NH''n.  1  Itf't  tluMiii  to  thia 
jdace»  and  so  ^  Atter 

tbc  rising  al    k  ir  ^vas. 

made  about  bcrihir>  ultini-j   upon  th 

army;  but  now   on,  i^j   resolve   up( 


cottfves  :    and  i^Uvu  tboy    Jiud 


( 


5]  32  CHARLES  II. 

in4jf^ti>'«  host  ftnd  royall  stmodart  be  bve 
c.Tyitie^  and  KT«Hia  piqukiUe;  sad  be  tfce 
4ih  Act,  1st  ParliaiD^t  kiog  Jamft  1,  it  u 
^tfttijt  an<)  onJaioedt  that  ifaoy  doobejs  to 

\«li:it  uas  to  arise  from  the  estates  of  sach  as 
had  been  personallv  concemed  in  the  imingj 
would  not  answer  tneir  expectatioof,  a  more 
genera]  oppression  of  gentlemen  and  heritors  is 
resolved  upon.  It  was  presumed,  that  sach 
who  did  not  heartily  join  the  army,  were  well 
affected  to  Presbyterians,  and  no  opportunity 
of  brinsring  such  to  trouble  was  left,  especially 
when  it  was  like  to  brinsf  in  lanfe  sums  of 
money.  Thus  I  ftnd  6y  tSe  council -registers, 
Noycniber  6,  <  That,  at  the  dvsire  of  the  lords 

*  of  justiciary,  a  committee  is  named  to  Meet 

*  with  them,  the  chancellor,  earls  of  Argyle, 

*  Alurray,  Gleucaim,  the  president,  treasurer 

*  depute,  register,  and  advocate,  and  consider 

<  what  shall  be  the  punishment  of  absents  from 

<  the  king's  host.  November  8.  Their  opinion 

*  is  re|>orted,  that  the  heritors  and  freeholders 
'  {guilty,  should  be  fined  ;  the  most  guilty  not 

*  above  two  years  valued  rent,  and  the  least  in 

*  a  fourth  paVt  of  their  rent :  that  those  who 
'  are  fined  in  the  least  degree,  be  appointed  to 

*  take  the  oath  of  allegiance  and  declaration, 
'  and,  if  they  refuse,  that  they  be  fined  in  the 
'  hi*; best  rank.'  The  council  approve  this 
report.  Thus  no  small  pcrHecntion  for  cou- 
scieucc  sake,  is  mixed  with  thi<*  civil  kind  of 
crime.  Those  proposals  are  transmitted  in  a 
letter  to  LawderdaJe,  dated, 

<<  Edinburgh,  November  11, 1679. 

<'  May  it  pleaae  your  grace  ; 

"  The  just  abhorrence  we  have  of  the  lnht 

rebellion,  and  the  too  just  fears  that  the  same 

principles  may  occasion  the  same  distempers, 

do  obhge  as  to  inform  his  majesty  by  your 

grace,  that  if  these  who  went  m»t  V}  a«ii<it  hu 

m:^estj  against  these  rebels,  or  fleMTtefl  the 

king's  host,  be  not  paniabed,  we  CMnnfA  pro- 

miie  hifl  majesty  wdl  hate  any  prtprirtir/nal 

fcrce  against  any  fntnra  issurretticnfl,  «inre 

««  ficC  by  oqr  great  experience,  that  tbew 

who  «eR  at  daily  expcnce  and  hazard  m  that 

cs^iboMi^  are  nneh  dbcooraged,  when  tfi^-v 

^ttc^ben  who  flayed  at  Wwie,  or  d<Mrt#-fl,  j 

^-^-^  MthiDg ;  and  that  soch  at  M^yttl  at  j 


Proeeedingi  agaiiui 


[« 


Us 


yy**wi  a  priadpleoT  mMnMtem  to  hi* 
^j^yy^CHMMl,  d»  trett  the  doifffiln#^ 

and  iin- 

yoor   grac^ 

tiMlweanarevdvH 

mwy  ikmt  f^bMen^  m 

te  Urn  Mi'nhiuiyl  tlMiId  be 

brnigM4 


inforce  the  king  against  nottor  rebells  agaiimt 
hia  person,  when  they  be  required  be  tM  king 
and  commandit,  they  shall  be  chalenged  be  the 
king  as  fkvourers  of  sick  rebellers ;  and  be  the 

offenders  have  been  punished  by  forfeitures^ 
confiscations,  and  banishment  Theie  our  re- 
solutions, though  taken  and  formed  afler  much 
serious  debate,  are  sul^ected  with  all  dutiful 
respect  to  hia  majesty's  royal  consideration,  by 
«(  Your  grace's  most  humble  SSenrant, 

«<  Rothes,  Cancel.  I.  P.  D.'* 

«  The  niiotiona  for  this  heavy  oppression  of 
midtitudes,  we  see,  caniefrom  Edinburgh,  and 
were  fallen  in  with  at  London.  AccordinglTf 
I  find  a  letter  from  the  king  upon  this  son- 
ject,  recordedin  the  justidary-registers,  of  the 
date, 

"  C.  R.        "  Whitehall,  Nor.  18, 1629. 

'<  Whereas,  albeit  by  express  law,  the  de- 
serters from  our  host  he  punishable  by  death, 
yet  we  are  graciously  pleased  hereby  to  allow 
yon  to  proceed  against  them  in  the  same  way, 
and  to  the  same  pains  and  punishments  as  yoa 
are  resolved  to  proceed  against  the  guiltiest  of 
such  as  did  not  come  to  our  host :  for  doing 
whereof  this  shall  he  your  warrant. 

"  Lawoerdalb.'* 

<*  By  the  proclamation  issued  out  during  the 
rising,  tlie  absents  from  the  host  wei*e  to  be 
punished  as  deserters  of  it ;  but  that  being 
death  by  some  antiquated  laws,  and  it  not 
being  blood  but  iTioney,  a  good  many  alK>ut 
Edinburgh  were  at  this  time  wanting.  This 
le  ter  was  procured  with  relation  to  deserters, 
who,  I  suppose,  were  not  many,  in  the  ordi- 
nary sense  of  the  word ;  and  this  was  a  preface 
to  what  followed  as  to  the  absents. 

'<  I'hat  same  day,  a  letter  is  writ  to  the  couo 
cil,  approving  the  projposal  in  ail  points,  whic 
they  make  in  theirs  of  the  11th,  and  so  it  need 
not  lie  insert  here.     When  they  are  thus  war 
ranted  to  begin  their  finings  upon  this  hea 
they  go  rouudly  to  work,  and  letters  are  v 
to  the  sheriffs  m  each  shire,  that  they  send 
the  h*x>ks  of  valuation,  or  attested  copies 
tliem  U>  Edinburgh  ;  and  the  officers  of  ' 
army  are  appointed  to  send  in  lists  of  the 
riu>r%  in  each  shire,  who  did  not  attend 
kir^'«  ho«t. 

"  io  fiecerober  and  January,  citatior 
mtWrtsA  X/»  be  given  to  some  handreds  c 
ti^'m^^i,  fi#:rit/w*,and  freeholders,  by  th« 
eiary  •  it  t/y*  vime  time  before  the  listi 
be  made  up,  %w\  the  witnesses  condesi 
on,  arid  th*  rraiisgers  themselves  seem 
be  ffiSiy  ftgTMd,  and  se? erals  were  for  nr 
iywrsM»  g«^4km#tks  exctises  being  fow 
f^  ih^tm  hiffitlj  fswnnMt  for  not  r 
iw<HfttT<,  arid  t/M^ttt^  t//  the  host 
f  Mwt  party  j^*?a«kd. 

"  Turn,  r^titfy  ^1J,  •  great  mi 
Asraf/e  g^.fWri#»»,  fmitnnf  «nd  ft 
ga»n«iM  b^^^  t^  jMtidaor  fc 
JLtm  tlie  t^^-*  ^  receive  tbetr  r 


the  ft/eihire  tferitors, 

5Tth  Act,  IStli  ParlLament  king^  James  $,  U  b 
onlainedf  that  all  maner  of  men  that  ban  land 
or  goods  be  rcadie  horsed  and  g;eared  eOer  ihe 
facuftie  of  his  lands  and  goods  lor  the  defence 
of  the  realint  at  the  comniandTnenl  of  the 
king^s  letters,  and  whoso  liets  not,  he  shall  he 
jlUDisbed  ID  his  person  and  goods,  espectallie 
when  they  are  reqiij^red  therto  be  his  innjes- 
tie's  proclamation  for  subdueing^  of  traiterous 

|iloyed  by  the  gentlemen,  and  their  deftences 
are  longf  and  pleadings  wery  l&r<(e  upoti  the 
mattsr  in  general,  and  the  uarticnlur  oirctitn- 
stances  of  the  pannels.  The  advocate  give« 
hirge  replies,  and  enforces  hh  rcawmings  with 
the  freight  of  the  letter  from  the  king  to  the 
council  upon  this  head,  dated  November  18, 
which  \tas  noticed  just  now, 

**  This  argument  from  a  resolution  in  coun- 
ctl,  backed  vrith  rojal  approbation^  no  douht 
was  uuansv^crable  ;  ami  so  the  lords  give  sen- 
tence against  the  gentlemen.  1  cannot  insert 
all  who  were  fined  now  and  atVrwards  ;  only, 
for  A  taste  at  this  time,  James  Young  of  Kirk- 

loan  is  iined  in    1870/.  Hcots, of  Fit- 

lochic  in  700/*  Alexander  Durham  of  Largo 
fn  1830/.  Darid  Bakanquel  of  that  ilk  in  50Ql 
Alexander  Nairn  ol'  Saml'urd  in  294 /.  George 
Moncrief  of  Re* lie  in  300/.  James  VVeeras  in 
Glencoffitoim  in  173/.  and  muUiiudes  of  others, 

**  At  other  diets  of  the  Justiciary  in  Fc- 
brtiary,  1  find  vast  numbers  ot  gentlemen  and 
heritors  in  the  shires  of  Lothian,  the  IVlerse, 
and  other  places,  pannellcd,  and  more  than  a 
hutidred  of  them  fined  in  very  considerable 
sums ;  and,  fowanls  the  t-nd  of  March,  the 
Lords  are  taktn  up  in  th<?  same  work :  sen- 
tences are  pa^tugamstasmany  as  in  February, 
if  not  more,  and  diiichargesare  produced  of  the 
paymc^ntof  former  tiues,  tiomeof  them  several 
thi>usand  jiouuds. 

*•  Upon  the  ^6th  of  July,  this  matter  of  ab- 
sence from  the  king's  ho«t»  is  taken  oirt  of  the 
hands  of  the  joi»tioi»ry,  r.nd  put  in  the  hands  of 
the  council*  Thih  was  a  more  arbitrary  court, 
and  ^dve  not  themselves  the  trouble  of  lawyers, 
ftod  iegaJ  del«nces*  That  day,  1  tiud  the  ad- 
focafe  produced  a  letter  from  the  king,  of 
the  dat«, 

««  C*  R.  Windsor,  Jane  1,  1680. 

**  Right  trosty,  Bcc.  We  are  sensible  of  the 
lall  etfects  that  have  followed  by  the  trial  of 
who  have  beeii  absent  froni  our  li»jst, 
the  justiciary  ;  and  hemg  nilbnncd  that 
summons  are  isi^ed  out  to  cite  many  others 
through  the  shires  for  that  crime,  it  h  now  our 
will  nsd  pleasure,  that  they  be  proceedeil 
against,  not  criminally,  but  by  Way  of  finnig, 
hi  lo  the  degrees  of  tneir  gutH,  uotad* 

II  olous  excuses  for  ubsaiice  or  deser* 

tJoni  HiMcli  we  look  upon  a^i  preparatives  of 
tatfurona  consequence  to  our  service,  Wv 
icure  nonp  f  -""-t**  T-*-  ^n-  troubled  with  trials 
or  cttntiun r. ,  pted  w  ho  are  known 

t0b«iu>ion(j^'*j  t,.,^i.^.,4^^ij  toour  government 
id  Hate :  tor  though  we  ate  at  this 


A.  D.   IfigO.  [6 

and  sedltioits  rebells,  who  hade  most  trailer 

ou!ilie  assumed  and  taken  the  hoUltii    "    '       eF  T 
his  niajrstie's  law^  and  act«  ot  |i 
at  the  marcal  cmce  ot   the  hur^he  *»t  ii.  m 
glen,  tipon  the  iwentJe-nynth  f>f  May  hsl,  M 
day   appoinie^l  for  nm?  sidt-nine  nnniver^iary 
thanksgiving  (W  his  niai»^stii'*s  rest  no  ration  td 
the  royal  I  government  id'  thli  kingdonie,  and 
who  hade  most  tressonablic  eonvocat  and  as- 

time  gracioofily  pleased  to  excuse  them  from 
criminal  inocejis,  yet  we  will  tUft  suffer  absf  u!i 
and  deserters  to  escape  without  some  puiiisti* 
ment  by  way  of  fining*  which  we  desire  yoi 
to  signify  to  our  justice  con rt  Ho  we  bid 
you,  6cc. 

*^  How  it  came  to  pa$s  that  such  a  letter  «s 
this,  of  the  date,  Jutie  1.  was  not  iutimiitc*d, 
till  July  26,  I  shall  not  enriuircs  rt-rtainly 
someboily  or  other  found  their  advanlJige  by 
it.  This  letter  is  intimated  and  rrcordeil  in  the 
criminal  books,  and  ftll  processes  in  dependence 
before  them  are  dotted,  and  in  their  rooin 
succeed  the  processes  for  forfeiture  of  life 
af^r  Airs- moss. 

*♦  When  this  matter  comes  before  the  conn- 
cil,  they  go  closely  to  work,  and  their  regiMers 
fbr  some  months  are  mostly  taken  up  with 
those  processes.  Many  hnnilreds  are  cited 
before  them,  the  diets  of  some  aie  continued, 
others  are  deserted  (not  without  composjtioiis 
and  money  jn-ivalely  given.)  Mulliiuilea  are 
fined  in  absence,  and  some  det^lavtd  fugitive. 
I  To  enter  upon  particulars  would  swtfll  this 
I  chapter  too  much.  Let  me  give  only  a  few 
tnstauces,  <  July  13,  Dundaa  uf  Borthwick  is 

*  tined  in  a  year*s  rent.  August  1,  the  laird 
'  of  Riddel's  excuses  tor  absence  not  sustained, 

*  he  is  fined  in  two  years  rent,  which  is  C,QOQ(, 

*  Scots;  George  Douglas  *d  iJoryedhurgh  fined 

*  in  ti,000/.  Scots  ;  Ker  oC  Cherr>  trees  in  3,(KH) 

*  merks  ;  James  Scot  oFThitLstiioe  in  '^770/, ; 

*  Francis  Hoot  of  Gieenhitl  in  H(>0/.     Ills  uo- 

*  ticedj  that  they  nil  refused  the   de«  laration, 

*  probably  otherwise  they  might  have  had  their 

*  excuse*  fius*aincd,  or  l>een  tlued  vastly  down 

*  of  those  sums  ;  and  so  they  art^pruiurly  suf- 

*  fcrers  for  their  oiiiniiin  in  painl  ul"  pitrliicy^ 
'  Augttst  9,  the  following  ptj^onsin  nerwick* 
^  fihire,  are  fined  fur  ab^t^nce  from  tlie  Imst  j 
'  l^trlck  Wai-dlaw  in    t.OOijL   S*^ots,   flglwrt 

*  BrowQ    of  Blackburn    l.yoo/.    Pmi:?b    of 

*  Greeukntnv  l  nOO/.  Alexundt^r  Flume  in  8t, 

*  Hathaii  nel  !!JjH.nce  400/.  C'hipper- 
Moun  ol                 Irugh  1,000  merks,  Georgis 

*  FTnme  ot  Bi*i>sf  iiden  1»000  tnerks.*  They  arts 
all  ordained  to  pay  in  six  days.  But  papiicular 
instances  woiUdht*  endless.  Nov.  li,  I  find  tire 
council  apiKiiul,  *  Th»it  caption   be   executed 

*  with  concurrence  of  parties  of  SidJiers,  for  the 
»  fines  of  the  absents  from  the  host ;  that  their 
'  escheats  be  giUcil  in  nan^e  of  his  majesty** 

*  cush-kcej>er  ;  that  in  tirnecomingy  all  found 

*  gnihy  of  absencf  shall  be  kept  lu  custody  till 

*  they  pay  the  fine.'  Thist obliged  many  ui»t  lo 
compear,  and  then  the  soldiers  exev^ule  llies«u> 
tence  pronou  need  i  n  absence. ' ' 


yj  S2  CHARLES  II. 

sr:iiMv(!f  not  odIv  without  but  as^oeit  hit  i 
m3jr<U(.\  auihuriue,  to  thf.-  number  of  t'^'ve  or 
fiv  liuti'ir.  lii,  anil  took  the  boMres  to  luvaue 
Aft-l  >c'.t  xitfri:  ^rtiie  troujis  ot'  bis  majestie's  j 
L'/.w!ounhilL  wbcrr  haviri<(  killc-iJ  ' 
•i.t  *'_-f  erall  of  hi.^  majfnilie's  subjects  : 
:•:-.  and   bcin:^  th*:rby  iaiboliirif.fi,  ■ 
« ->^!l  a.'ifl   «;rowe  to  th^  number  of  i 
-:  -ri'^iiftari^l,  t'l  nhicb  lilt  iiiaje»ii</fe  I 
t  r>   -^  vter  noua\«A  frfiij;^! ;   aud  bib 
i  »•    »  .f   jf'f:.<^r%Jii.on   M"   lil<i   ri.yall  ' 
.'       .:  \i.i  '."Ji-  .-.iiij  ri',  li.t  b'lj'jiii--  i 
I.    ".A   l.->-i»^  i;.  :.':,   *.l   TjiS  l"Ki#l    aiid 

.  ' :   .;«j-.t    ii^;,''  '  j!  tfl  out.  rc«jij\red 

•     .     .  .  'i    ;.-  '.  '.r  »:\ri:»ffr^  in  ihfc 
"■         ......:  l^  *  -^  'J    i:i    t;.*-   .Aii- 

.:'.-.  .:  Uoirs*  MJi^- 


'-t-.f-i  toa.Un^  ibe 


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V''.*2r*^  ^*«i  «»4  «h»r  WV    '^  '■•-■' 
-«U^^^j[T7^te)ttW&4lU^  b>«i^  v{ 


Proeeedhgs  against  [8 

and  conitDaniJf  d,  all  heritors  and  frechdIderSy 
sensible  [fensiblej  |)crsun8lher«erYantsand  fol- 
low ers,  to  cunie  out  uiion  horseback  within  tlie 

lie  iititlcT  tb(»  cnminrjiid  of  general  Dalziel ;  the 
^birc  of  IIaddinL>ii}jn  to  meet  ai  BeinstouD- 
ii;iiir  the*  1  itli  &a\  of  June  instant,  and  to 
be  under  thi*  cointuand  of  i lie  viscount  of  Kingf- 
stoun  ;  Slirliii<j:  and  Clackmannan  to  meet  at 
iht  town  of  SiiiliiiL:,  and  from  tlicuce  to  inarch 
to  the  links  of  Ltitli  upon  the  11th  day  of 
Juiifr  iii.lant,  and  to  be  under  the  (*ommanci 
.if  the  lord  £lphi!ii,'stoun ;  l^rw  ick  to  meet  at 
Fo'^o-nniir  upon  the  llth  day  of  June  in- 
stant, aiid  to  Ih;  under  the  comniand  of  the  earl 
(•f  Htiine,  and  in  his  alisrncr,  his  brother 
Cburles  llumt*;  Koxhur^^h  ainl  S:lkirk  to  meet 
;it  Annum-biiiiije  upon  the  loth  day  «»t* 
Jnnr;  instant,  and  to  be  under  the  command  ut' 
the  lord  Eliiiauk,  and  the  laird  of  Slobs,  wlio 
arri  to  command  i-ccurdli^  to  the  divisi(»n  of  the 
ih.Iitia  troops;  lifo  to  meet  at  Cowjiar  the 
Tiih  day  of  June  in>Uuit,  and  to  l>e  under  the 
coiiiruand  of  the  lord  Newark;  Perth  to  luevt 
at  I'f  rill  the  i:>lh  day  of  June  instant  and 
to  l»f;  iin  1».T  the  command  of  ihe  niar«]uis  of 
MMiir«**.c,  and  Mich  pei-sons  under  him  as  he 
shall  ap|/>int ;  Torfar  to  mtet  at  Forfar  upon 
ih<:  L.tli  da\  oi  June  instant,  and  to  be  under 
lb*- co.xn.aiid  of  the  earl  of  Souihcsk;  Riii. 
r,:,.-fj..iar:'!  Mar>.'i.oI  s  part  of  Aberdeen  to  meet 
h*  A  »*.''.*'•'; ii  i.iir-  iipon  the  lyth  day  of 
J'i:.*'  .'.-^'xir,  -i-ii  It  ^le  iiudcr  the  command  of 
•.  ': '-^.ri  ,:   \h')\h\  li^nilfar.d   FrroPs  |»art  ot 

i.v  -'.': ; .  *f  rn(:  i  ■:'.  '1  i.neffn|jon  the  l^ih  day 
'  /.;..;.•.-.;; r.t,  >.ii'i  i**  Ji"  under  the  uoumiaud 
..  '..J?  '-...'I  ol  Ki:.t..*  ;  i«l;;ini  Forics,  Nairn 
-i  y.  r/..  «tMf:  \t:  ■,  I'l  MJ(;et  ui  Forn^s  upou 
'•>:  ;.•',»»,  r:..v  'J  Jfi;.  iniiant,  and  to  be  under 
.*-/./. fr.:..^.:;o'  'if  tl.r-  i.:jil  ofMuriay,  and  in  his 
*.-•"/  *..'  I'.r-!  D.itiii-*;  Uoss  to  meet  at 
',...:.'.  i>.*i  */.;:'\  oay  of  June  instant,  and 
..  ■^/•.,  '-.■ '  }.,'■  '.-,11.(1. and  of  the  tarl  of  Sea 
;■.'•.  >.•.•}  *.i .'  .1  ..'i  tb«-  heritors  and  free 
•A  .  •■•  '.t  •■:*■  ..  .  'vj  Unoith   Forili,  to  niajxl 

-  .-■'.«•    .  \'M'  !iii  iend«vonz  to  the  bridge 
'.f  ••*  •     /  \  .-.kK  ?♦.'•  liJ'htors  and  frcfhohlc 
*>.      -    #■•."*-*   '„•.    i|i'.   "i'lsith   side  of  Forth 
••i-       i^  •  -     <   '      r".'i'vouz    lO    tlie    \a\\ 
'..  l^          ;.'•*■   »'■  ".    i».<r- till  tnilh*  r  ordt 
-                V.  *«  r    *i»    tbi  in   to  M-ize  upon 
<  j..*U/->/,    y — -      arid    in    ca-e  of  res' 
k  /y>      V.         t\     i\\   f-ncinies,     wi' 

*  I    .,v;-r-*  4»   • /,    .ij,.  t,f  Kucdi   as  slial 

'  ^.;r--^.:         ,-    r  •/ :  -z  oiil  *»\'  llu'  sbiiv  to 

.      .   V  .4^  i   .  V  t'l^''  to  tbi*  said  C4 

.•  ..#v  .    . /x- -  *   ^bi'if-  under  then' 


^  ■  •  f.\\  i?r.i»M'i'*J  ol  iho  s 
hi  X*  bi  ihc  rf 
.  x^. ■'*../••  ■«  f  #ri  #<.<!,  t'l  i:aose  1 
•.  .  i'!-.;i  to  I"-  ni:ide  h 
*  «  II''.  r  ll.i  .1'  comr 
,.  -A  ■•  .••.  ,  ./'^  «.M  Aw  ap.iojnli'd  f 
I,,,.  *.g  «  ••  i«u  *v.'/ ''f  fb'- immI:'(i  tbatt' 
^t^^^.i.j.  '.«;  v»  J. .'.' t-.<Ii>  k'-pt;  <;er 
irfy».v»  •  ■     --'i*.  '^  ••  /'•   .  '^"*  *'•*••  **  "*" 


/^.  vv  r,  -  .wj>  ■ 


9] 


tht  Fi/ejJtire  Hcri(or$, 


A*  0.  i6sa 


[10 


ftliyroi  fvf  Fyff,  l^dlnlnin^l^  LinIitl>^oilv»  Pee 
blc?s,  I!    ' '    _     iui,  Sui'lin,  < 'lackmanan*  IS«***- 
M^ick,   I  Selkirk,   IVrth,   and  others 

tlici'«i(j   itit  iikiiFiuU  ;    yvt  the  pcrsionai  ttbuve> 

w^hdt  with  llieir  best  horses  find  orms,  with  no 
umnv  of  their  servants  anil  followers  ns  Ihey 
eiui  triiig"  imt  npim  liuTTsch^rk,  tUvy  sljull  he 
lml>l«  lo  the  jiains  Jinil  [leniilties  provided  by 
tbe  nets  of  partiamcni  iij^auist  nnch  nn  d'>  noi 
ntit-nd  the  knife's  hosl,  or  desei^  llit-  samp,  and 
looked  upon  na  disalVccU^d  p4*rsonii,  and  1'n- 
vonrL^m  and  compilers  wiih  rehch,  und  put'sued 
and  punished  accord in^jflv;  And  ordttin  the«e 
prcMcnis  lo  Ut-  prinlt^d  and'  pnhlished  M  lUe  mar- 
Lct'cnjsi  oi'  Kdinburjrh,  and  other  placets^  lore- 
s^iid,  ihat  lunw  preteml  i^^'noranec. 

'*  Tna,  Hav,  CL  Seer.  Ctmo. 
**  God  sav«  the  kin§r." 

Wndrow  ob«ienrcs,  that  **  l!je  narrative  ofthis 

prochination  sticus  it  was  fornieil  when  the 
rctfiil.^r  Torcea  coming  bnck  toivartis  Cilasytiw, 
thonght  good  lo  return^  since  it  rf-prescntslhal 
the  jti'^urrcclion  in  the  vieslern  Bhirr^i  is  now 
grown  to  du  opin  rcUltion  :''  uwl  he  proceeds, 
*•  This  proclamation  was  matter  of  icr\  gricv- 
oiijj  rtnmi;  to  a.  ^reat  many  gcnUcmcn  and 
nthcts,  who,  for  di^ercut  reasons,  eonhl  not  nt- 
t end  the  king's  host.  All  or  moist  part  of  the  of- 
ficers named  for  that  liost,  were  i\w  mo^t  violent 
jiei*eeutor<*  of  Prcfiib\  tcrians,  and  there  were 
lK»t  a  few  among  them,  fay oureiii  of  Po|KTy, 
And  »on}e  prolcKSud  l^ipists.  This  wan  [dainly 
cunlmry  to  law  and  ihcir  own  lute  procfaniation 
iliis  very  year»  and  flowed  from  the  strenj^lli  of 
the  dnkeuf  York'ts  part^'  in  council/' 

lie  iil^o  ii)?;crl!)i  in  tlte  ^amc  Appendix  (So* 
18)  the  foltuwiog^  paper  *  writ  by  a  v  ery  able 
*  hand*  intituled  *'  A  Letter  of  Advice  v^rit  by 
a  g«'i»tleinan  to  his  friend,  on  theoccusion  of  his 
^oini;  out  to  wait  nf>on  the  army  contbrin  to 
the  proclamatiun^  June  7,  1(>79/' 

*'  Oppurtnnity  i«  the  life  of  action,  witlKiiit 
which  ihe  doe(»e»rt  and  mo  r  '  'S  deviaed 
counM'Iji    prove    abortive*  i     know, 

ibut  iiir  all  d«»i^ais,  wlocii  jm,.i  i  ,. i>i  mifirht  be 
startled  at,  then'  is  no  op|iortanity  comparable 
to  that  of  Boddeu  .rm  ,  -i  ni^  ul.iilw.f  hsppy 
4ir  uidkuppy,  if  t1  cat  con- 

ecm:  for  inrns  <j  _  set  alott^ 

and  so  rendered  iinw»ry  and  inadvertent,  fair 
|>rrtextM  are  then  likely  to  lake,  if  ever ;  be- 
UM3  at  such  times,  men  havo  not^  or  take  not 
sure  to  i»eareh  to  iIh*  iKittoni  of  tiling,  or  to 
a^ider  (hcfn  on  all  NHb/v,  and  uccordinq;  to  all 
f»r  pri'tteol  ond  futnve  titiportance.  \  rec«nt 
1^  of  the  p«r- 
i9iil;tnd«  to  bin 
^  '  -  zm^ 
Uv, 
hiM 

iH:  led 

\y  I  ,  -   ,iiid 

yi  tii  work 

fci  I  ^  iihuU;  way 

liir  tiieiii.     i>t  wtiicil  i  fbail  only  ssiy^  that  I 


r  namrd,  tWd  prcfranie  to  abyd  and  remain  fir 
hi5i  iiuijeMie*fi  ho»t  and  royn]' 
tfiey  find  j!.*;  ane  of  them,  nn  i  an4 

part  ihereoi',  which  l>ein^  fouo<i  r^  ...«.  .*^%ys 

wish    ihcV   Tl>!»v   ln-HVr    li'-i    I  frr'i'tiialJv  TiPOt-firia 

ttir  flic  rr'  y  I 

and  his  km  i  i  to  i 

finpjwsc  tbt»y  wui e  aH'ectionately  meant  tor  the 
^iMMf  of  both. 

*♦  To  apply  this  to  oitr  p  tiona! 

thoti<;:h   f  cannot  positiii !  whd 

are  at  the  helm,  ot  any  nmiLfhaud  Luijirniinc 
or  certainly  conclude  tb«  tuinie  from  the  ooti 
ward  flppcitra  ace  of  their  :  ' 

sibie  that  such  importni 
now  f:i)lcn  out,  may  proriipi  uj<  ui  iv 
themselves  in  their  cominatuU,  as  ^^ 
our,  may  be  n\ore  zealous  and  foru,.,. 
well  advised  and  really  dutifnl  obedicint 
as  loni^  a^o  it  wns  told  me,  by  a  vv'Mnr> 
certain  ^eat  laan'^  behaviour  ut  ll 
nient,  Anno  1648,  that  he  would  i:<: 
all  the  world,  that  he  Imd  Wtrayed  them,  yell 
be  could  justly  nay,  that  if  he  had  ^ot  a  hooa 
full  of  Kfold  to  betray  tljem,  he  ciuhl  hav*.*  don 
no  more;  so  f  will  not  a&sert,  with  the  rhnrcfi 
w  state  fanatics  of  this  lime,  that  our  contii] 
sdlors  are  ronlly  desi^ninf^  to  introducHi  up 
Ui,  I'  "      '  (§1 

cutch 

6IUn^      i;t      t  »|  li>>4'(   i:U^   II      IlKli'   <'l    )      trtll      (I 

may  say,  that  had  they  the  lOOKt  real  and  for* 
waril  intention  of  so  doittcf,  they  coubl  hnrdli| 
have  t alien  upon  moi-e  hkcly  und  favournbM 
eouriJes,  for  that  end,  than  some  ot  those  tbeyl 
are  taking. 

•*  There  is  much  talking"  of  a  Popisb  Plot,  and 
if  there  be  sueb  a  dt'*<ig"n  of  arlutrary  power,  i 
being*  also  a  work  of  darkneJ^^  that  dares  not  i 
Hault  Its  with  open  iaee,  and  m»ct  to  go 
hands  with  I  he  utlier^  1  may  call  it  anotlie 
i'lot,  which  tim^it  work  uoderboai\l  aniil  he' 
be  (irepared  to  defend  it.  And  t!»cfe  two  pn 
eiumations,  the  one  for  volunteers,  whereby  all 
the  Papists  in  the  king^dom  are  armed,  and 
called  nut  to  the  fields  ;  and  the  other  charging ^ 
nnder  lii^licst  pains,  the  whole  nobility,  crentr? , 
and  b^ritom  to  attend  the  army,  under  the 
command 'of  otiicerti  appointee  I  hy  the  conncil, 
lire  like  two  mines  t^priin)>  ii|K)n  the  chief  W*- 
tions  of  our  liborties  and  reli*i;ion,  and  we,  likd 
twds,  hear  the  rKuuc,  and  pijce  upon  the  fimokc% 
but  diiicerti  not,  nor  consider  what  it  Imth  car* 
hed  away  with  it. 

*♦  For  my  own  part^  to  (five  yon  my  jndg"- 
mcnt  freely^  aa  yon  have  desirei  it ;  amongst 
all  the  iJfHevanccH  which  we  have  been  com* 
pbiinin^  so  muoh  of,  llie«e  yeiirs  hv  prist,  tlier* 
nri' but  few,  that  either  bti*     '  '  v, 

or  arc  imlc  ed  of  greater  \v 

iherknow  I  nny  onr  Hiep«  ^viiimuv   i  ..|ki  >  ,jijj 
arbitrary'  (lOwer  have  bud  occnsion  ot  making 

*.iiih.i     r.r.H,  .  ..     fi»\wuds     their     *-'"'> Mt 

-by  they  have  j^  r 

,        -  by  ibeiie  tw<i%vx 


L 


3i  CHARLES  II. 


they  ought  to  be  panished  in  ther  peraons  and 
f^ouds,  to  the  terror  of  others  to  comm^  the 
hke  lierefler. 

Pertewer. — Sir  George  M'Kenzie,  of  Uo«e- 
haugh,  our  sovereign  lord'ff  AdTOcat. 

Mr.  Robert  CoU^  Advocatas  Procomtor  for 
}Iay,  of  Uaihousie,  alieadges  that  the  imnnall 

**  By  the  constrtation  of  our  goverament,  we 
are  not  only  ruled  by  laws,  but  also  by  cus- 
toms, the  obligation  whereof  is  many  times 
equi^  alent  to  that  of  our  most  positive  laws : 
must  it  then  be  a  custom,  uid  consequently  a 
law  amon^  us,  that,  to  satisfy  the  humour  or 
interest  ot  a  court  favourite,  we  may  be  liable  to 
most  heavy  burdens,  and  taxes  upon  our  es- 
tates, to  furnish  him  with  power  to  oppress  and 
crush  all  that  will  dare  to  oppose  him  ?  and 
notwithstanding  that  we  b^ow  such  large 
parts  of  our  fortunes  for  the  maiutenasoe  of 
soldiers  for  that  end ;  ^et,  when  by  the  long 
continuance  and  eztreimty  of  those  oppressions, 
which  were  enough  to  make  even  the  soberest 
and  wisest  men  mad,  he  hath  forced  wars  and 
disorders  of  the  highest  nature  and  conse- 
oueace,  it  may  be,  designedly  too,  for  ought 
that  is  seen,  and  as  by  no  small  politidans  is 
reasonably  alledged,  we  nevertheless  must  be 
obliged  ako  to  come  out  in  person,  with  our 
lives  in  our  hands,  and  serve  as  soldiers  under 
such  commanders,  as  the  council,  being  mostly 
his  creatures,  think  fit  to  appoint:  wherein 
these  things  are  noticeable,  which  gentlemen 
would  do  well  in  time  senousiy  to  consider,  if 
Uiey  l»e  indeed  content  that  they  go  into  a  law, 
lc«rt  afterward  they  repent  too  late. 

*'  That  whi-n  we  have  granted  never  so  large 
taxations  for  paying  of  soldiers,  the  council, 
without  a  parliament,  or  our  own  consents, 
miiy  nevertheless  command  us  to  serve  as  sol- 
diers ourselves,  though  it  were  but  to  uphold 
9omc  particular  interests  amongst  us,  which, 
thus  circumstantiale,  will  be  found  to  be  some- 
what more  than  what  either  our  old  custom  of 
traiting  upon  the  king  snd  his  host  with  forty 
«Uys  iMiivision,  or  yet  the  late  <^er  of  our  par- 
liMiwnt  of  all  betwixt  60  and  16,  do  import. 

•*  That  they  may  impose  commanders  upon 
«»»  without  or  contrary  to  our  choice  or  con- 
9^U  whom  if  we  offer  to  reclaim,  we  may  be 
^1^  upon  our  allegiance,  to  obey,  as  I  hear 
^f%  Mi>i  dane  in  the  case  of  the  gentlemen  of 

imay  so  oblige  ua  to  serve  imder 

■tea,  at  tl^  have  done  with 

_„  EiMaidiu  and  Marshal's  part  of 

«^  i^wiMgh  there  are  so  many 


aftainsitbem,  and 
I  UMJ  areall  pro- 


.  Jh-oceedingi  i^tftetf  [» 

cannot  goe  to  the  knowledge  of  ane  iaqocist, 
because  it  is  offered  to  be  proven  that  he  was 
actuallie  preseut  with  the  heritors  of  PMh- 
shyre,  and  hade  two  or  three  servants  with 
hitu,  well  apuoynted  and  keep't  all  the  rande- 
vouzie  with  the  capUine  of  tlie  shire,  and  went 
aloiigst  to  the  camp  with  the  rest  of  the  gen- 
tleman of  Uiat  shyre,  which  defence  doea  to* 

and  kinsmen,  perhaps  for  no  other  crime,  than 
their  standing  to  tbe  just  defence  of  their  and 
our  liberties,  against  the  incroachmenta  of  SMne 
court  iNirasites,  or  whatever  else  it  be,  that  yet 
his  majesty's  will  bein^  pretended,  or  at  wlini- 
soever  rate  procured,  it  must  be  presomptioo 
in  us,  or  somewhat  worse,  to  inquire  further 
into  the  cause. 

*^  And  after  all  this,  what  is  ours?  and  what 
privilege  is  there  that  we  can  lay  claim  to?  If 
we  will  not  think  upop  these  things,  when  re- 
presented to  us,  nor  lay  to  heut  our  great 
concernment  b  them ;  it  may  be  said,  wiUurat 
wronging  us,  that  we  deserve  no  kiss  than  all 
the  sUverv  and  miseiy,  that  by  such  prepam- 
tives  are  designed  for  us.  Are  all  the  nooiUtr 
and  gentry  St  Scotland  content  to  settle  tkm 
yoke  upon  us  and  our  posterity  ?  Most  we  he 
the  degenerate  socoessiun  of  so  noble  and  y 
thy  progenitors,  by  yidding,  without  at 
mony,  those  liberties,  which,  with  such  { 
and4:are,  they  retained  through  a  tract  nf  ao 
many  ages,  and  transmitted  intire  into- oar 
hanJs?  Were  we  bom  to  be  the  betrayert  or 
sellers  of  our  own  and  our  soccessoni  birth- 
rights ?  and  so  to  be  marked  as  the  nerpetnal 
shame  and  opprobry  of  the  history  or  our  na- 
tion, unto  the  end  of  the  world? 

**  As  our  readiness  to  serve  our  kinijps,  to  oibej 
their  just  laws,  and  to  defend  their  persona 
with  our  lives  and  fortunes,  hath  long  time 
been  no  small  part  of  the  glory  of  our  naticin  $ 
so  hath  no  less  been  the  native  courage,  and 
resolute  boldness  of  our  ancestors  in  resisting; 
and  opposing  to  their  face,  such  flatterers,  as, 

Ereying  upon  the  ^foodness  of  their  prineoi 
ave  at  any  time,  by  misrepresentations  of  per- 
sona and  ^ira,  endeavouned  to  abuse  his  au- 
thority, by  forcing  or  insinuating  upon  hi# 
faithful  subjects,  customs  different  from,  or 
contrary  to  their  settled  laws,  or  derogatory  to 
the  honour,  and  opposite  to  the  true  interest  of 
kingand  kingdom. 

**The  Caba^  who,  it  seenos,  knew  well  enough 
that  their  counsels  woukl  never  be  proof  eitiwr 
of  law  or  reason,  and  so  behoved  only  to  bo 
propagated  by  authority  and  force,  had  good 
reason  to  obtnide  upon  the  late  parliament  of 
England,  that  Test,  whereby  they  were  to  do* 
dare  upon  oath,  that  it  was  unUwful  to  reoal 
with  arms,  any  person  acting  by  tho  king^ 
authority,  which  they,  seeing  the  project^  and 
foreseeing  the  event,  found  no  \em  reaaoMblo, , 
far  the  good  both  of  king  and  eonntry,  unani- 
mously to  reject  For  to  say,  thu  no  nan 
actuv  by  the  king's  authority  oivht  to  bo  roJ 
siatea,  ia  all  one  aa  to  say,  tnt  it  is  ImpoiBMo 
that  Unga  can  be  ahnsad  $  and  aB  ono  oo  W 


15]  1*^  fifoihiri  Ihvitori. 

tmllie  eleitl  the  iybell,  ^  hieb  only  rvlalei  to 
icb  as  remained  tVoiii  the  lios^t, 
i  Wy  Lord  Athocat  oMaudgeSj  that  the  allc- 
"ince  oughl  to  be  repelltHl  in  respect  be  tbe 


A.  D.  1660. 


[14 


iy\  Uiat  if  a  wicked  minister  design  tbe  ruin 
both  ot  king  and  kingdom,  under  colour  and 

Iirt'textofaulhorilv,  Jt  is  unlawful  lo  binder 
lim,  though  it  were  in  our  power.  If  iiaman^s 
Plot  bad  taken  effect  Wf'ore  Egther's  access  to 
the  k\n^^  who  will  judg:e  it  to  have  been  a 
crime,  tUou^U  tbe  Jews  had  stood  to  their  own 
defence,  uuld  such  lime,  as  his  trtachery,  iheir 
itui'icencri  and  lUe  ki«|j*»  damage  bad  been 
I  f«jw«s«nle*l  ?  ibouph  Gcul  in  his  mercy  and 
I  justioe  provided  a  better  outgiitc  for  tbcra^  and 
•  worse  end  for  bim  ;  a  dreadful  example,  and 
which  ou^ht  to  strike  with  horror  all  abusers 
of  their  king's  favour  ami  authority. 

*'  He  d^ierveth  that  a  tyrant  should  rcigti 
over  himf  and  is  not  worthy  of  the  protection 
of  a  lawi'ut  prince,  that  will  not  cbeerfully  ba- 
yard his  liie  and  fortune  for  the  defence  of  his 
^r^on,  honour,  and  just  laws.  But  what  if 
the  king^s  name  be  made  use  of,  to  acts  mani^ 
tesily  contrary  to  bis  interest  in  aJI  these,  and 
which,  it  may  1^,  erery  reasonable  man,  and 
loyal  subject  is  bound  in  duty  to  beliere,  his 
iDi^jesty  would  abbor,  if  impartiaJly  consulted 
in  ibem  ? 

**  If  this  be  not  impossible,  I  hope  our  next 
IkarUanat'nt  will  see  to  it,  and  consider  what  the 
tbmier  batb  done ;  and  till  then,  before  you 
engftge  yourself  too  deep  in  tbe  cange,  you 
b^ve  good  reasoD  to  examine,  both  what  are 
the  true  causes  of  iliese  poor  people's  appear- 
ing in  arms,  and  wli«t  they  would  be  at;  and  if 
they  be  oppressed  contrary  to  justice^  or  de- 
mand not  unreasonable  things,  you  would  think^ 
what  may  become  of  you  and  us  all  when  they 
are  broken. 

**  They  say,  the  devil  shouM  hate  his  due ; 
and  to  deal  no  worse  with  the  Presbytcdans, 
though  they  were  bs  bad  as  be;  I  mu^  coniess, 
that  never  a  {people  on  earth  were  dealt  more 
hardly,  or  more  unreasonably  with  than  they* 
They  stand  upon  a  j9cruple  uf  conscience,  that 
I  Ihey  must  buve  no  meddling  with  tbe  bishop s^ 
«  ajMi  that  both  by  scripture,  and  their  solemn 
oath  to  Goil,  which  they  think  no  man  can 
dispense  wiUi,  together  wUh  an  opinion  of  more 
sensible  benefit  to  their  souls,  they  are  bound 
to  hear  none  other  than  those  of  their  owir 
way ;  which  being  granted  them,  as  it  was 
once  the  utmost  of  their  aim,  so,  no  doubt, 
WOitld  have  as  absohitdy  secured  tbem  to 
peace,  and  obedience  to  magistTaies,  as  any 
otlier  *-''''  '  italsoeycr:  but  this  not  being 

aliowi  L >y ,  lor  avoiding  public  oftence 

and  the  r^acn  oi  tbe  law,  ■secsnbled  themselTes 
privsK'ly  in  houses  for  healing  thfir  {ireacheni ; 
wbidi,  ail>eit  the  same  be  toie. openly,  and 
without  either  cballfiige  or  punishments  in 
J&nghuid  and  Ireland,  yet  here  was  looked 
u^tU  u  io  ndtfiiious  a  crime,  that  strict  and 

Ctevert  acts  were  immediatelv  issued  foKh, 


lawes  and  acts  of  parliament  heritors  are  to 
assin  the  king,  to  punish  rebel  Is,  and  are  U^  ^ 
enforce  the  ktnsr  s^gainest  rebel  Is,  both  which 
tteccssarbe  impfys  as  the  nature  of  their  dut| 

bouse,  apprehtndeil,  imprisoned,  eonie  in  < 
prisons,  some  tortured  for  procuring  confl 
sions  from  them,  sotne  weak  or  sickly  perse 
blocked  up,  till  they  died  in  prison,  others  6ne 
in  great  sums  of  money,  some  wherecif  paid 
again  and  again,  to  the  great  diminishing  ol 
their  fortunes,  and  detriment  of  their  |Kwl«rityy|| 
others  not  paying  were  kept  still  in  pris< 
some  whereof  have  been  prisoners  many  yo 
by  past,  and  are  yet  so,  who  never  saw  a  neM- 
conventicle. 

'*  Thus  they  wer©  constrained  to  betake 
themselves  to  the  hills  and  deserts  in  the  tiehli, 
tor  shunning  of  these  severitiec,  for  which  they 
were  more  cried  out  upon  than  ever,  as  pers^mi 
not  only  disobedient  to  the  king's  laws,  ba~ 
designing  a  rebellion  against  bis  person  an 
authority  by  these  Bekl-meettngs.  Tbey,  lika 
so  many  Roman  vindicators  of  their  liWrltc 
and  rights,  knew  that  desperate  disease 
required  dpsperale  remedies,  and  therefor 
thought  no  Imzard  too  great  for  tbem  to  vn^ 
der^o,  for  preventing  the  bondage  threatene 
a^inst  them  and  their  posterity  ;  while  we 
like  so  many  asses,  crouch  under  tbe  burden 
He  must  see  to  bis  freedom,  he  to  his  life, 
to  his  fortune :  and  though  our  endeavourp  iq 
those  methods  befool  us  never  so  ofWtt,  yel 
we'll  sit  still  and  see  the  public  toter^t  sinki' 
rather  than  think  of  another  wav.  If  our 
wounds  will  not  cure  withont  pain,  weMl  ler 
them  rot  upon  us.  Hut  behold  tlie  end  of  thi« 
sure  dealing,  of  this  thin  skinned  and  elfemi- 
natc  tenderness.  Fy  unon  it !  it  looks  as  if 
this  generation  were  made  for  no  other  end  but 
to  be  tramoled  upon,  then  destroy ed,  and  well 
to  deserve  both « 

*<  Upon  this  head,  the  then  armless  multi- 
tade  was  pnrsaed  from  hill  to  hill,  as  so  many 
traitors;  armed  men  sent  against  them,  bj 
whom  many  of  them  were  apprehended,  aome 
wounded,  some  killed,  some  imprisoned  in  cloae 
prisons,  some  tormented,  some  sold  as  slaret 
to  tbreign  platitations,  though  by  tbe  Provi- 
dence of  God,  delivered  in  a  strange  way.  to 
the  shame  of  their  enemies.  Some  of  their 
women*  both  old  and  young,  most  barbftrouslT 
used,  being  stript  naked  by  the  rude  soldiers, 
their  oblb<»  carried  away,  and  they  lefl  in  that 
destitute  condition  in  the  ones  tields.  And  as 
if  all  this  their  patient  vnHbrtDg,  had  server  1  for 
no  other  end,  but  to  mcense  their  adversaries 
fury  and  implacable  malice  the  more  again  si 
them,  as  a  more  eminent  proof  of  their  destiiie 
at  them,  they  mised  a  great  army,  with  % 
sumptuous  train  of  ammunition  and  artillery, 
to  Aghl  egainet  the  very  i^^nd  of  the  west 
country*  as  carrying  alooM  with  it  an  in* 
fectiottsprf-*^-  *— nn  air,  whereby  other  places 
might  In  1  ;  f^r  the  poor  people  in 

the  mean  u,.,.^  ,,^:i»  all  sittitvq^  '^%jtwb^^ Sa». 

V 


m 


32  CHARLES  IL 

[Hie  does,  not  n  simple!  comin«f  to  the 
liOet,  bu4  «nc  rpiimmiittr  lill  Ihc  coL'inies  F>e 
defuta  ;  hut  so  \i  is,  that  liDthoiisie  did  not  st4i}' 
with  tjie  host,  but  came  hofiieaud  bq  is  lyahle ; 
will,  it' this  vttiv  allowed,  the  net  ef  pnrliamcnt 

*'  This  their  host  mainly  consisted  of  b.ir- 
haroua  liii;hlanders,  by  whom,  like  as  ttinny 
•avftges,  cruelties,  opprcWiotiJ?,  pUuiders,  an<l 
i»lher  horritl  ahuses  n»Tc  exercised  npon  then*, 
iA)i3  g^reat,  villuitirMt^  and  sihamerul  to  be  nnmeii, 
hy  'uiy  man  wfio  owns  himself  a  country  man 
i^f  tho»ie  who  eomuiUti'id  them,  or  of  those  slate 
ijiiiiwlers  by  whom  i\wy  were  siuthorized. 

**  In  llie  mwin  time/ by  an  aft  of  non-ad- 
ilressesi^and  aoothfr  otlnlurcommuninfi:,  where- 
by tt  is  unlawful  for  Ihu  son  to  gfive  a  bit  of 
hrcadi  or  lo  speak  to  his  father,  or  tlie  wife  to 
ker  husband,  thougrli  lying'  8tarvin;j  at  their 
doors,  all  access  by  supidicatton^  or  otherwise, 
either  by  ttiiemadTes  or  their  friends,  being-  cut 
i>ff  from  them,  either  to  his  majesty  or  his 
council  ;  and  whatever  acts  of  ^rarc  his  ma- 
jesty w*5  pleased  to  sicnd  in  their  faiourSi  the 
isme  bttinf*  either  so  mfnced  and  clogfped,  or 
wholly  sappressed  by  the  means  and  power  of 
tl^ebinhops  in  the  council,  that  they  wor«  alto- 
gether depri?ed  of  the  benefit  thereof,  as  was 
done  with  a  late  order  from  bin  majesty,  for 
liberty  lo  them  to  preach  in  houses  :  and  after 
all  this,  a  proctauaation  beiog'  emitted,  whereby 
it  is  declared  treason  for  them  to  be  found  at 
iho&e  meetiufjrs  with  any  ajms,  and  the  standing 
forces  bafiug'  received "orifers  of  tire  and  sword 
tgainst  all  that  should  withi^tand  tbeni;  which 
bein^  put  iu  execution  by  captain  Grahani  of 
Claverliouse,  to  the  effusion  ol  much  blo<>d,  and 
the  same  measure  being  declaredly  appointed 
for  the  whole  remainder  of  that  party  ;  let  any 
cober  and  dLs interested  mau  judge,  if,  with 
that  wijse  and  honourable  counseller  the  earl  of 
l|»haftsbury,  it  may  not  rather  be  Uiong^hta  mi- 
ractilous  work  of  God,  that  these  people,  havings 
the  hearts  of  men  in  them,  should  have  sitten 
and  suffered  so  much  and  so  long- ;  than  be 
4hau^ht  sti*ang«,  that  now  at  length  they  ap- 
pear in  arms  for  their  own  defenoe  from  such 
Utter  and  imminent  i-uin  ;  or  yet  strange,  that 
f  ucb  numbers  should  How  in  to  them  at  such  a 
aick  of  time,  when  bifih  those  of  our  own  no- 
bility aud  gentry,  who  ha?e  so  much  endea- 
f  oured  to  reprci>«Dt  to,  and  convince  his  ma- 
jesty of  our  grievances,  have,  by  the  forgeries 
and  iniiouatious  of  evil  couns<^llero«  liemi  so 
<itleii,  and  yet  are^  not  only  ti>tally  trustraled, 
6ut  shghtingly  and  misre^-iirdfutty  ti'«»ated,  as 
persona  oppo#iile  to  hb  majesty  ^s  inteit^st  and 
fin.-; — ..  mj4  also  by  proroj^Jing  '»f  *'-  i-'-.'j;. 
iment,  mensho[»4is  of  helj  , , 

^ .  . . ■ .  . .^j  liberty  or  reii gi»m,  so  un i  \  - ,  : .- 1  i 

tbem,  and  the  succession  of  the  crown,  as  well 
bcrc  as  thur  \s  Ki\  Vikt  \\  to  be  dcvolvt:d  \ipun 
ji  known  vt. 

*'  Are  I  (0  bestow  your  a*iiii»»t- 

mim  of  alt  tbe!»e  op- 

_  I  link  that  your  loyalty 

•lyagvth  y^^u  w  tZ  do  f  Virt  bctofis  you  go»  I 


1 


RhonlJ  be  eliisoric,  the  coantrey  irtideffefi(lil»j 
and  n;bills  unpuniMhetK 

8ir  George  Jjockftart  re|dy8,  that  tlic  de- 
fence atandii  relevant  notii  ithfltaniUng  of  the  | 
answcjr,  because  it  ir  not  contravert<Ml  wlial  is  j 

woujil  have  you  answer  me  seriously  these  twc* 
or  three  questions. 

*^  Are  you  sure  that  your  loyalty  would  fortify 
you  to  suffer  patiently  all  tbose  things,  if  the 
burden  were  on  your  own  shoulders  ? 

*•  Have  alt  these  arg-uuifrits,  that  you  are  so 
well  furnished  with,  against  implicite  failli  !€► 
churchmeu  in  church -aff^urs^  no  proportionailii 
weight  at  all  aqpaiust  iinpliciie  faith  to  states- 
men in  state -affairs?  Or  can  you  not  say  thai, 
the  streams  are  muddy,  nuless  you  coticlud^ 
the  fountain  to  be  so  afso  f 

*'  Who  bad  grejLter  respect  to  the  king's  ho- 
nour, inieresl  and  laws,  tnose,  that  witlKUil  th* 
conilitions  required  by  the  law,  in  obedt(>nre  to 
the  act  of  council,  found  caution  of  law- 
borrows  for  his  majesty's  safety  ?  Or  they,  vrho 
in  obedience  to  law,  reason,  conscience,  and., 
their  allegiance  to  their  prince,  diti  altogether 
refuse  it,  both  as  a  thing  wherein  the  law  could 
noi  be  answered,  and  wliich  they  found  exceed* 
ing  derogatory  to  his  majesty's  honour,  dignity 
and  aovereigii  authority,  which  our  allegianca 
obligeth  us,  *  with  our  lives  and  fortunes,  to 

*  the  uttermost  of  our  power,  constantly  and 

*  faithfully  to  maintain,  defend  and  advance   _ 

*  against  all  and  whatsoever  persons,  power  or  1 

*  estates,  who  ^hatl  presume  in  any  ways  to  prew  J 

*  judge,  hurt  or  impair  the  same?'  James  0,  i 
purl.  18,  cap.  1,  / 

**  In  which,  by  the  way,  it  is  worth  the  od* 
ticing  how  toiserably  Jhose  jiatrons  ofsupfv 
macy,  those  champions  oftlie  arbitrary  leli 
law  ovei^reacbed  and  faltred  themselves,  li 
tliistheirDOtable  legal  invention  for  supplj* 
the  room,  and  saving  the  credit  of  their  il6r 
bond,  in  that,  while  they  are  coniendinf 
much  to  exalt  the  king  above  the  law,  the 
the  mean  w  hile,  not  only  make  him  a  sr 
cant  and  defueaucr  of  himself  to  the  lai 
subject  Ikim  to  so  mean  and  huioble  a  c 
of  necessity  of  supplicating,  a  degree  so  ^ 
suitable  to  a  supreme  governor  o^r  allM 
and  in  all  causes,  that  not  only Jie  is  m 
of  alt  kiags,  that  ever  was  made,  byf 
counsellors,  to  stoop  so  low,  and  likeli 
Ust ;  but  even  amongst  bis  own  subjeq 
are  many  thousands,  that  would  thiw 
far  below  tiierii  to  hiwborrows  of  aiidf 
majesty,   at   lea^d   Uih  council  declaf 
ready  to  take  by  that  act,  yea,  whtf 
much    houour   to  maintain^  as    wr 
them  disdain  the  very  thouj^lit  of  au 
ticc.     We  may   t*"''-"-  **'*t>  «  u.i» 
cuuucil  Itatli  bed 
thf^ir  actmgif,  wti' 
their  choice* 

**  Now  this  waa  a  prodami 

t  I      llOW     C41I 

t.  and  iotei< 

a^d  iu  tUu;.(^  f  uudatneut^Ll  oUx^di 


tlie  import  of  itie  acbs  of  parliament  Ijpbrtlcd 
upon,  M  hetbti'  lliey  be  suflhcieat  to  found  aue 
dittay  againc^^t  ilt'SurtJii   ^e^  or  not ;   but  ihc 


by  our  wbule  refireseDtatiTes  have  unani- 
mously bound  tbems^ilves  and  us,  and  their 
and  our  siieeesson*,  to  the  perpetunl  and  nual- 
terable  Enaint<  nance  of  both,  is  eiideat  tu  all 
that  will  not  wilfully  sliut  their  ryts, 

**  U  it  for  us  ib'en,  lo  take  upon  trust  onr 
kiu^^s  mind,  honour  or  mterest  from  such  law- 
c'ivers  ?  Or  if  we  Jo,  may  vie  not  allcri^ard  l>e 
found  aa  culpable  in  obeying,  as  they  in  com- 
loanding-  f 

^^  Jfihis  prevail  not,  consider  but  these  heads 
of  the  oatii  of  c^oronation,  ivherewifh,  and 
wbere(i]H)n  our  kln^s  iisceiTe  the  crown  of  this 
kin^d«im,    *■  that   tliey  shall    rule  the   people 

*  c*rmniiired  to  their  charge,  acoirdiocf  to  ihe 

*  houi^nrahW  litw>  n.nd  consiitutions  received  in 
■  thii*  reaUu  ;  that  they  shad  procure  tn  the 
'  utterini»!<t  of  their  ]iowt'i\  to  the  kirk  of  Ciod, 

*  and  hail  ClmKlinn  people,  true  and   [H'rftct 

*  peace  in  all   time  comiui; ;  that  tbey  shall 

*  forbid  and  repress,  in  all  €*sitntes  and  decrees, 
'  reift,  omire^sion  and  all  kind  of  wroi)i>' ;  thaL 
'  iu  all  judi^ments,  they  shall  command  and 

*  procure,  thai  Justice  and  if4|uity  be  kept  to  all 
*■  creatures  w  itbout  exception,  a^  the  Lord  and 

*  Father  of  all  mercies  be  merciful  to  them.* 
James  6,  parL  I,  cup.  H.  Think  then  ho\v  deep 
it  may  draiv  upon  their  score,  not  only  before 
God,  but  betbre  mau,  who  presume  to  take 
upon  them  to  advise  or  persuade  his  majcsly  to 
act,  or  to  act  themselves  under  colour  of'  his 
authority,  thing^s  manifestly  contrary  and  re- 
|)ttSfnant  to  this  sotema  oath  of  God,  and  chirf 
*uiHlamental  hw  of  our  nation  ;  and  of  what 
fatal  consequence  it  roay  afterwards  prove,  not 
only  to  tiiem,  but  also  to  their  abettore,  aiders, 
cucoumgm  iu  such  wicked  imlawful  cmmsels 
and  practiceK ;  at  least,  if  erer  Scotland  be  sn 
faappy  m  to  return  ag^u  to  the  uabiass^d  rr^ht 
use  of  law,  reason  or  coascieocc ;  and  yet  more 
ca;peci:ill^,  when,  to  the  conviction  of  all  men, 
our  king-  is  of  hims«lf  so  naturally  projiense 
and  inchrjaUle  lo  all  ways  of  justice;  anil  cle- 
mency. 

'*  his  known,  that  his  majesty,  at  his  restau- 
ration,  declared  bim^tdf  resolved  not  to  alter 
the  govfr  TiriLf  f.rihe  church  thenestablishe*k 
ItiBtkL  of  late  also,  a  plenary  imd 

iinivers .  ^  nee  was  granted  by  him,   iu 

favours  ot  tiio  uonconformi$it«^.  Thise  are  the 
uattTe  eiTecls  of  our  kfn<];- s  mcli nation,  ^ooiJ* 
nets  and  clemency,  by  either  of  which  all 
ihcse  immineut  mischiefs  might  have  been  pre- 
vented*  Who  tlicu  were  the  obstructers  ? 
Ought  tliey  not  now  rather  to  be  searched  for, 
looked  upon,  and  dealt  with  as  the  greatest  ene- 
Que^  of  king,  people  and  government,  tlian 
lusinted  in  the  prosecution  of  such  pernicious 
counsels  as  have  oncasioneU  so  imliappy  and 
so  uuseasotiabte  a  bieach  in  our  peace  and 
safety  ? 

'*  Shall  I  ever  believe  that  bis  majesty,  who, 
of  his  own  nature^  is  so  wise  and  so  just  a  pat- 

VOL.  Xh 


only  def^tiee  is,  that  ther  b  no  crimiuall  ly- 
hcU  raised  aguinest  the  patmall  as  a  deserter, 
bul  simplie  for  byding^  trae  his  majestie's  host 

leru  of  civility  and  obligingness,  and  who 
ruleth  by  compact  betwixt  him  and  his  lieges, 
would  ever  have  forced  commanders  upon  the 
nobility  antl  gentry  ?  ei^pecially  at  a  time, 
when  It  appears,  be  oetdeth  so  much  their 
sen  ice,  and  ibey  are  so  willing  to  bestow  it. 
When  the  French  king,  who  hath  no  other  law 
for  his  actings  but  his  own  w  ill,  yet  dotb  not 
so  much  as  propose  any  officer  to  the  gentry, 
when  he  caVleth  them  forth,  but  remitteth  that 
matter  w  holly  lo  lot. 

**  Can  it  be  supposed,  that  his  majesty,  whose 
life,  honour  and  kiugdoms  are  m  bunted  for,  by 
plot  after  plot  of  these  bh>ody  emi&saries  ofSutan, 
the  Papists,  the  greatest  and  most  insolent  ene- 
mies ofmonai-chy,and  the  most  incurable  plagiie 
and  bane  of  all  humnn  society,  and  who  there- 
fore commanded  lately  his  proclamation  to  be 
issued  forth,  for  apprehending  or  banish irig 
many,  and  wholly  disarming  all  of  them  within 
all  the  corners  ot  the  land,  would  ever  not  only 
have  restored  to  them  the  power  of  their  arms^ 
but  have  nut  great  numbers  of  bis  faithful  anil 
hoti^ourahJe  Protestant  sulijecLs  under  some  of 
their  commands  ? 

'*  Can  any  man  think  it  his  majesty's  will, 
that  Bailie  Baird^s  son,  w  ho  was  never  a  sol- 
dier»  should  be  cornet  of  a  troop  where  the  eati 
of  IjOthian,  earl  of  Dalhoussy,  viscount  of 
Oxenford,   lord  Torpichen,  Balnierino,  hi\  are 

10  ride  as  troopenai,  and  where  his  grace  the 
dnkeof  liucclcugh,  when  he  arrives,  can,  ac- 
cording to  the  procjamntion,  pretend  no  higher 
than  the  tight  hand  of  the  Jirst  rank  ? 

**  And  since  we  haie  such  ground  to  doubt 
of  these,  and  it  is  so  well  known,  that  bis  ma- 
jesty did  not  of  himself  intrude  bishopt  upon 
us,  but  only,  by  the  selfish  treacbcry  of  some 
who  were  employed  to  secure  us  from  tliem,  he 
was  perewaded,  and  made  lo  believe,  that  that 
governmenl  would  best  agree  with  us  :  who, 
in  reason,  can,  or  ought  to  iniagine  that  it  pro- 
ceed eth  from  his  majesty,  that  his  subjects  of 
his  tlirije  kingdoms  should  be  engaged  in  bloody 
wars  and  devastation  of  their  fortunes,  wherebjf 
they  may  be  renderetl  a  prey  to  foreign  ene- 
mies and  lurking  Papists,  and  un6i  to  serve  his 
majesty  iu  n  more  necessary  cause,  and  of  far 
greater  concern  to  king  and  kingdoms,  witli 
the  uncertainty  of  what  further  ruin  these 
evils  may  grow  to,  rather  than  part  now  witU 
that  ffovernmeni  of  the  church,  when  he  sees 
how  far  he  bath*  been  tnisinfuriued  concerning 
it? 

**  His  majesty^s  both  mind  and  true  interest 
being  thus  cleared,  this  then,  in  plain  terms,  an 

11  consequence  clear  enough  of  itsetf,  must  be 
the  true  state  of  the  aifair,  Duk*^  Lawderdale 
is  obliged  to  the  biiihops,  they  helped  well  to 
uphold  him  when  he  was  tottering,  and  yei 
help  him,  and  therefore  we  must  uphold  them, 
though  we  should  allfaH  in  the  quarrel. 

''  l&  the  cause  then  sufficient?  Caa  yotL 
C 


I 
I 


m 


32  CHARLES  11.       Pr&ceedingi  againtt  the  FlfeMn  Haiimr,       [W 


\mni\  royaU  siaiidiirt.  uhich  is  altogfitluT  dtsttnct 

ln>rii  liie  crime  orileiert,  und  the^r  are  screrall 

I  defences  coropetcnt  iq  tbe  one  cas^  ihut  are  not 

Itake  }Otir  life  in  your  band,  aud  !£<?curetj  re^t 
fyonr  conscience  upoo  it  P  1  hniiiph  vf>u  could, 
)'ou  Bure  that  \m  gain  fihRil  be  yours? 
fAnd«  prav,  wliether  was  it  interest  or  con- 
Ptenee,  trial  made  that  statesman,  wbea  he  ivas 
llast  amongrst  ns^  cndearoor  no  much  to  have 
Istriick  in  with  the  Preabytertan  i>urly«  those 
itebels  a^inst  tile  king  and  government,  when 
Tlie  saw  tliem  growing  so  fast,  and  so  difficult 
[to  be  borne  down  ?  Which  iikelv  Lad  taken 
t  effect,  if  he  had  not  been  checked  m  tht^  bridle 
lit  hi^  first  starting  aside,  and  so  ()cbuvcd  to 
ITcnpw  his  cngatfemeols,  with  fi^esh  and  evident 
rUmimonics  ofhisreahty*  not  tinding  it  fit  to 
[  tinhinf^e  himself  of  the  ouepai-ty,  whire  he  was 
yet  unsure  of  the  ulher* 

I     **  If  Ibis  llien  he  the  sum  of  the  matter,  that 
I  the  bishops  serve  duke  Lawderdale-s  interest, 
iind  we  therefure  mast  ierre  the  bishops  in - 
[lercst  ut  any  rate,  lest  othen%ise  we  filiould 
weary  of  lieiug  tre:id  npon  ;  all  I  can  say 
t  captain  Carstair^,  Baihe  Caroiichacl,  the 
[  town- mnjor  and  hiii  men «  are  like  to  come  to 
I  BO  fjumll  credit  by  so  noble  and  nunicrous  n 
\  traui  (d'  assessoi's,  as  the  whute  nobility  and 
'  gentry  of  Scotland.     However  on  sohie  ac- 
counts, ihty  must  yield  to  them  the  prehemi- 
,  nence,  those  only  haTingtheadiantage  of  profit 
for  their  Ktrvicel  bcint^  mercenary  n^^ues,  and 
^  bavin ^^  others  aUo  under  them  to  wait  ilieir 
•  commands,    while  these  hare  the  hon«»ur  to 
1  testiijr  their  zeal,  by  far  greater  condeaccn- 
I  dency  of  serving  under  command,  and  some 
under  those  theyliate,  eome  under  those  thmt 
hate   them,  some  under  in^igttificant  green- 
,  lioms,  and  others  under  worse  tliau  some  that 
«TC,  or  have  been  their  hired  isenants,  and  all 
this  not  only  gratis,  but  to  their  great  ct pence, 
•ml  with  tlic  exposing  of  their  Ures  luid  for- 

101185. 

*•  ir  you  think  this  honourable  for  you,  you 
may  be  doi  n  g  a&  m  ueh ,  an  d  as  si  I  en  t  as  any ,  a  (be  it 
€n  all  the  forenamed  gruundn  you  have  so  jtist 
snd  handsome  a  way  to  retreat":  if  not,  ]  fi-eely 
give  you  my  advice,  that,  n't  1  doubt  nntluit 
you  will  liotQ  be  as  lorwajd  anil  cordial  as  any 
man,  in  testifying  your  afTfcdon  for  the  rt  il 
tnaiutenance  of  lirs  mR)v^iy*ii  authority  ;  go,  if 
you  lind  not  yoursc}f  indeed  conccnvrd  to  give 
proof  of  it  in  iliis  ininrrt^l,  you  di«enjjngt!your- 
•elfin  tiriic;  or  it  otlKTwl^et  that  yt'i  vim  go 
0Ot  out,  nor  do  any  thin^^  withfi  '  ^  ^  ii 

©f  tahojurt\  upon  tht*  iorefiici  i 
that,  by  a  bud  picpanilive,  yow  .,<  ;,,„  .,.,,,- 
cnsion  af  an  irnrparsible  dunnige  to  your  coiin- 
Iry  ;.  which,  at  snrh  a  time,  wore  {  nf  one  of 
those  shires  that  are  called  out,  ymi  itjay  be- 
lieve me,  I  wotdd  think  it  my  duty  and  honour 
to  do,  though  Mith  the  greatest  hn /.a rd^  and 
Ciiuugh  there  were  not  another  to  sercnid  mc  . 
IVhen  the  public  inteiTCSt  is  like  to  Huiftr,  by 
tJie  ignonitjce,  neglect  or  coward ici-  of  all,  hV 
nehtcth  double  glory,  making  all  Uti  uiUioia, 


proper  in  the  other,  and  cr  ht*i\m 

ther  own  naittre  are  */ri>/*jA.  mh\  * 

not  be  extend  it  tiryond  the  prectue  tcmirs  Ml 


and  all  their  posterity  his  debtors,  who  ^teppetk 
in  at  such  a  uick  of  extreme  Deed,  with  oppor* 
tune  help  and  assistance, 

**  Take  courage  then,  and  regard  n«>t  itieeil- 
mour  of  court  sycophants,  who  live  upon  tbeir   ^J 
country's  ruin,  and  trill  l»e  crying  down   audi    ^M 
heroicK  acts,  as  opposite  and  prejudicial  to  im   ^^ 
majesty'^i  authori^.     But  be  you  confideot* 
that  it  Ihall  always  at  long  run,  be  found  «nd 
seen  that  lie  is  the  best  friend  to  his  king*,  tbat 
is  the  best  friend  to  his  country,  and  ti»  tlie 
laws  and  lilierties  thereof,  which  knh  kirig  anil 
parliament  have  declareil  to  be  the  birth  nght 
and  inheritance  of  the  subject,  and  the  security    ^| 
of  their  lives  and  fortunes,  Charles  2.  Pari.  1*    ^ 
Act  17,  and  that  these  two  interests  are  us  in* 
dividable  in  the  body   politick,  as  are  thoi»e  of 
the  head  and  the  body  natural. 

**  For  what  is  further,  consult  the  scripttm 
and  your  conscience  and  be  fully  perswaocd  la  * 
your  own  mind.  For  me  you  know,  how 
much  and  how  often  1  have  contended  for  epta*  ^ 
copacv  :  But  now  I  have  considered  tlietr  ^| 
partial  behaviour  in  the  matter  of  Danby  und  ^^ 
the  lords  in  tire  Tower,  those  arch  enemies  (J/foor 
king  and  gorernment,  I  see  them  lioth  iliert 
and  here  so  knit  to  the  bias  of  the  courf,  that 
they  will  rather  sell  their  souls,  and  the  wbo1« 
interests  of  the  kingdom,  than  not  swing  to  iliat 
side  right  or  wrong.  1  see  them  gencfnlly  to 
be  men  altogether  set  upon  their  own  proffit 
and  advancement,  and  that,  when  once  they 
can  make  their  court  well,  they  little  mind  re* 
ligioD,  or  the  care  of  souls.  1  see  they  take  na 
effectual  course  for  curbing  of  profanity,  atu| 
that,  ifa  man  will  but  stand  for  their  grandeur 
and  revenues,  they  easily  dispense  with  bis  bein^ 
otberwise  what  he  will.  I  see,  that  at  moist  any 
scHodaloits  fellow  that  will  own  them,  antl  hatu  ^^ 
but  an  M  btfore  tiis  name,  may  ha^e  a  kirk  ;  fl 
too  rauny  whereof  I  know,  and  'more  here  than  ™ 
with  you.  I  have  considered  bishop  Sharp,  mm 
their  head  and  last  introducer,  whose  rewftrd 
hath  Imtu  terriUe  in  the  justice  of  Uud,  what* 
ever  the  actors  have  bern.  And  1  have  coo- 
fiidered  bishop  Patersou  aK  the  tail^  whose  re- 
wanl  is,  no  doubt,  waiting  him  also,  if  he  men^ 
not  his  manners.  1  huwe  not  forgot  their 
rnjcl,  arrogant  and  blood-thirsty  stopping  of 
his  nntjcstN  ',s  grarious  bounty,  and  keeping  up 
of  bis  n  ni!<'(ion  afWr  the  business  of  Pentlaml, 
whicb^  with  their  torturing  and  hanging  of 
the  p«tor  peojdt*,  aOer  tjoarttrs  given  them  in 
the  tiehU  by  ^ieniral  Dalziel,  as  it  was  a  singit'o 
lar  reword  to  him  for  hi^  good  service  doii# 
thc'iTi,  so  may  it,  to  all  |ionet<t  hearts,  be  as 
[lalpiible,  as  it  is  an  odd  example  of  their  faitb 
and  ninnnftrs.  I  see  the  very  oflVscourings  of 
thf  rj\rth  employed  by  them  as  their  trustees 
nnd  hrroes,  fiir  propagating  of  tlieir  conformity, 
ntid  sotiir  of  thvni,  ihoiigh  base  all  over,  and 
de%pir«bli*  above  all  e.xnression,  yet  owned  and 
caretntd  by  them,  Qi  mav c  fellows,  and  chief 


tl] 


/or  Abimcifrom  the  King's  HaL 


A*0.  1680* 


rss 


wliieh  tjjey  are  lybdied,  and  cemiiilv  the 
'  <lffet»C4?  pr^-iit"'  T^  a  lotalt  dcfenct;  ftgtuiiest 
'  ihc  k^iC!ll  r. 

Hy  Loy^  ....,,.,.;  4!u|>l3e«^  tbut  abytlin^  is 

KproBslie  hn|iUett  in  iishitvhiig  and  viilurttu^t 

Of  no  man  cane  intVirce  but  be  that  byds,  ami 

pIhh  miiji'fii'iti's  aiUociit  insists,  orcordiug  to  tbe 

tfiiabsuitiptioii^  Ibot  be  did  reiniiirie  and  abyd 

frno  tbe  hoii  Ibe  day  of  Bolliwei  iVijfbt. 

Hit  Gear ge  Lockkuri^  adbearmg'  to  tbe  de- 
fence, craves  a  diiititictintcrtoquitor,  and  farder 
dleadges  ibattUo  des«^ttin|^iudc  bein  ly belled, 
.  yet  the  dittay  cnnnoi  be  put  to  the  knowledjie 
)  of  ane  assyse,  becaui!»e  the  pannaU  did  obtoiiie 
ji  V        '  .lis  of  Montrose,  cap- 

1  ids,  and  conunandet' 

c-j  ijM'  I  iniii  MiVM  -Miiiemen,  whtr  u[iODthe 
Lconsideraiimieii  tberin  mentiuued,  and  parti - 
VcuUrhe  that  the  pantiatl  ivns  tender  and  vuli- 
(ftiidntaric  and  not  able  to  atteud,  nnd  that  he 
^Lade  left  three  vnU  apiK^yoled  horssetnen  to 
iltend  his  ninjesities  8frviee>  he  grants  him 
lioence  and  Ubertieto  jjne  home  without  trouble 
r HHiUeatatJcm,  as  thcsnid  pns^  at  lenj^-th  hilars. 


'|>fOmoters  of  their  principles  and  iuleresit:  yea, 

io  Uttk  choice  DitiKe  ibey  on  this  bead,  whe* 

Iber  as  to  Profanily,  Popry,  Atheiikm,  or  what 

.eliie  yuu  can  think  on,  tiiat»  for  uug^bt  tliat  ai>- 

rpears,   a.^   many  devils  out  of  bdl  nould  be 

.Welcome  to  them,  to  [irop  their  Dajj^on  of  pre- 

Jucy,  and  to  be  a  »coiir|ft-  tu  the  tanatica.     1 

if^i  forc<2  and  the  rigour  of  the  law  are  their 

two  g^{id  pillars,  the  Jachin  aud  Boa^  of 

[4lieir  tctuple  ;  and  tb^  their  whole  poviert  ^^' 

Itlerect  and  endcavouru   are  80  joyutiy  ami  in- 

f  tirely  bestouctl  upon  the  auppresfcing  of  con 

tiTenticlea,  and   for  hindriu{^  the  pnachmg   ot 

L^tlie  ffospeif   by    thitse  of   the   nonconformist 

j  ^party^  which  renders  it  to  me  dreJidiuiK' sua* 

h|iiciuos»  that  their  cause  mu^t  be  but  so  and  so, 

I  M  heu  themt^lvesjudg'e  it  tiie  tt>ain  support  and 

|, security  thereof,  that  it  ne*«ir  came  to  a  fair 

i  lieariuif  ;  for  the  truth  lit,  they  reckon  them- 

^.ie)vc»  undone,  if  ever  the  pco(deiftt  leave  lo 

.liear  these  men,     I  see,  ino«i  of  them   look 

either  \vjib  allection  or  indirtWunry  ufion  l*o- 

[.|)ery,  that  the  PupisU  ibtui^eht  s  labour  them 

'ethau  any  other  ^ov^r hsm  ■  t    \\v-A  by  ihtir 

line**  in  pro2*ecnUn|i:  t  i  ;ireiheoc- 

t  of  much  euUo  in  -    and  that 

\\mpft  much  life  to  uU  tbetr  imsichievous 

PtlDT  tbe  hope  they  find  of  \et  ascending 

I ,  up  on  that  step  of  their  hierarcby  Mmaiuin|!: 

ttinon;:^!  us.     Whereat,  on  the  Other  baud,  it 

^^^\«led^^id  by   all,   tUut  the 

il  it  Hill,  it  is  certuinly  the 

^bcst  iriiiLkJ)  Lk;;.iio^t  I'otwry  in  ibe  world  j  the 

total    j-ootinj^  onl   whereol   nmor>;^t  uu,  now 

ir  the  diM'ovei'ieti  ue  have,  onytit  on  many 

ounts   to   be  I'Htcemed  the  gruml   inter<Mil» 

herein    tlie   powu^r,   wit   and   endeavours  of 

every  \^i^ui\  subjeci,  t^vi-iy  i^riod  couttuynian, 

and  exiiry    ^^'k"-!   < 'l.t  ,-_ii.,:.    vlnu.M    um  i.iujin*-. 

Andt  in  Hut;,  >  1, 

ihefaiai  coiifcr^  j 

meat  of  biahopi  amon^t  u»,  ^itk  ike  apiiear- 


( 


His  Majesties  Advocat  re  pi  yea,  that  those 
^entlennin  and  heriUirv  *-  i  '  'v  the  custome 
of  ifie  mUiou  and  by  *-  iticm  of  the 

coimcdl,  nideidfifcd  til  liu...,.  ...  lung's  host, 
to  asciat  and  enforce  as  «ai1  is,  it  nrninoiia 
the  power  of  the  marques  of  Montrose  or  any 
commandiT  whatsoever  to  relace  them  from 
this  duty,  for  as  they  carac  not  thrr  by  bis  or 
therjmtboritie,so*ej"uaeatoo'  ie/ 

and  if  it  wcr  other  wayes  c^  ,  ab- 

solutely disapoynt  his  maje^tiii*  service,  w'he^• 
as  they  are  choised  not  to  dispense  but  to 
command  andtherfortJiey  are  •>  extra  <>fficium' 
when  they  dispense,  hu\  if  the  sicknes  waa 
such  as  necessarilie  and  certainlie  hindered 
tktusie  from  goeing  on,  it  shall  be  found  r« 
levaQt,  which  is  alTthat  any  gwd  Mibjcct  cane 
crave  to  be  done  in  his  taTours ;  and  this  is  not 
the  grantingr  of  a  pase  hot  the  reroittinjf  of  ane 
duty  which  the  lawe  exacts  :  and  by  tlie  prti- 
clamation  wherby  the  commanders  wer  ap- 
pnyntedi  it  is  deelaired  that  such  as  oanie 
not  or  deserted  wer  to  be  lyable,  so  that  they 
wer  to  knowe  ther  duty  by  the  proclamatioo, 
and  lion  who  commandit  (but  the  councill) 
conid  warrand  ther  deserting. 

8ir  Genrge  Loekhart  duplyes,  thatthepannall 
op  pons  the  passe  'and  the  nctH  of  parliament     M 
I Y  bet  ted  uiKkn  ordainittg^  all  persons  to  enfoi-ce     H 
his  majtstie  againest  nottor  rebel k,  bears  thst 
exception,  unlestie  they  hare  ane  reasonable  eX- 
cusation*  and  ther  cape  be  no  excuse  more 
reasonable  then  a  passe  from  a  commissiunat 
oBicer,  tmder  whor^e  ccmdtict  and  conmtand  tlie     _ 
pan  nail  was  requyred  to  serve*     And  h^wyem     ■ 
were  clear  aa  *  Grotius  de  Jure  belli  et  pacis,'     m 
thiit    [qu,   not!    only   suprenmc   commandcTs 

ance  of  what  is  tike  to  be  tbe  end  of  the  pre- 
sent ;  and  that  our  nation  hath  drunk  in  nuch 
ati    inbre^l    and   indelible    prejudice    against 
them,  that  thoue^b  the&e  fourteen  men  were  as 
nmuy  iraints,  neither  can  much  ifood  he  ex- 
pected from  th»'m,  undtL-r  that  character,  in  this 
place,  nur  yi  t  they  ever  long  settled  without 
blooil  and  coufu«iion, 

*'  1  wish  only  the  pr- '"^  ■  '•-  m ^.-ij  f^\yf» 
some  pithy  »nd  incot/  of 

their  rt^al  uffevtion  to  !»;.  .....,.,,,    .„  .     .iful 

sovereign^  (md  to  ttie  true  line,  m  so  far  as  by 
t*oj>ery  it  is  not  interrupted  ;  with  8uc!i  a 
proof  of  their  aljhorrence  of  episcopacy,  as 
mav  make  tUeni  take  up  an  antipathy  at  their 
prelatical  viay  of  having  no  sooner  power  ia 
their  hand«,  but  inttuntly,  with  oaths,  tleclara* 
tion^^and  bomh,  tiyiui*  like  as  many  wild  cats, 
in  the  throat  of  our  consciences ;  and  that  tliey, 
Preiihyterians,  would  rather  lake  a  more  jfos- 
pel  wuy  of  instructing  us  in  love  and  nifvk* 
ness,  at^i  m  imticrice  watt,  till  by  the  use  af 
means,  and  tltc»r  affectionate  canisgo  towards 


1 


us,  wp  be  won  to  the  disce 
^ilon  of  those  (hing^ji,  ihM  ar 
wherein  wedilVci%  -''"I  "t'^ 
say,  Amen.    Tl.« 
and  peace  ;  and  i 
prelacy  and  ^^>i^\^  S*w 


perswa- 
tnenttls, 
fiij^esty 
V ,  tmity 


J 


-»4 


Jill  iiMi  nriiniir  iifiina^  '.loiier  :lii*r  rfmnuuiii 
jiu-r  ^-rrtnt  luwev.  xa\i  Ttie  ^JiiMuentitnis  !::> 
Linibc  n  im  lusiM!  ne't'*  -iiuii«»  l  i^-tiiar  tiui 
uie  nurqiiis  ir  Htmimife.  -T'lti  »  i  TtHTiiii]  n 
.r^Kii  UiUDur  iQJ  jfnuuiui  juii  rurvnn  iir  ii«v 

SUttSKItttr  -r*!™:!!.    -nilUU  JUi***    n^HUr-.i    lU  t^H"! 

iiisMS  luieaw  Her  luue  -Jeui  ^iint:!efii  ruus«: 
rur  he  «iiie.  uxu  i  :aiiiHit  jr  imu^ruMi  ir  ji-r- 
juinv*!  tuu  .ic^'  la^ixnr  tie  luouur  n  «n'4i  ju 
ouut-^e  u  nmiuuHuimu.  niivsRf  vniua  xranc 
a«aM»  11  Qe  ibinmeui  uiti  ii>^iiiiiL*a  if  Jis 
aiiiNstXKt  -ier*TL'v.  su  tun  ijer  «  in  Hiar  Tnm 
*ue  DU-JiiTembaL'e  ir^*a.  inu  r  aumut  w 
«r»nini\-#«TTe'i  lui  ue  iiunmis»  n*  HiimmsHs  ip 
luv  "iiniuuHfHiuai    »ine?r  iiiipr  jt;r*2   mifsvHi 

lUll     IMHIMi'l     IT    Ji»    TOIUI     U     Itt  -tlOlllcnt  ilt. 

JUII  -Till  \i  bk-^-  a-;  ui^TrumuGUiiiu!  m 
ubiW!Ttuit> .  nil  I  r»>r  ufuu^c  ul  laiiiMi  liia 
Kift*>«^.  rruiici  Hr  Ufn  :u  tiivM!  lumtsiiaiey 
imttr  'n«r  "inuiiaati.  ^kihiuu  im  le  *2U»n«r3iir 
.i\i.'*i«*'.  tiu  N*  lie  awes  uiu  .nintunim  if  ul 
'.uiu<ii>.  leiuvT  ulow««i  ni  ^ffr^  rjimniaiMuiiac 
■imirr-  uiiiUf  inH:aui:uuiu»  ii;&i  ▼v^'iiiiNii-^lie 
•!utu:iit'«t.  liii  av  lu  'V'sKTaim  m  :oiiiiiiiMUiimc 
iini'rp*.  %  i^-  at  V  nurii  wi  ut  n  'Ui»  tvm. 
»-u*.r!  #  I'.'iit  t»i*-"  writ--.  -Ukt  lein^  ivUlilUC 
uurK  •r»u:iii—  Drii  or  oiMrrvr  tini,r!r>  u  ^rmv 
«QU8«*»  *-i!v':i  ver  i«*er  xMiunvHrrc-a  hit 
iraivirii  u  :u«:jfu»n.  »n*'  ti*-"  im  i»'»  CTcjse 
'Cysc  'J  %.iim  ntv  rer  x'^uJit*^-  L ■•■?*«»  ne 
narrv..-:'  -.  "U.mr»»'j«  »:--^.aiiiiiv  lI•-«^'u•J•l"•••ln- 
llaL•  .r  ■:  Ufc  -flv^.  uxu  t>  •ifin.»«i  -w  us 
»r«^'-fl     Ltr     Kk!  '2-jA     «r;»     IP  -■n.^t     tiieu     'llt;^* 

n»ii!!r'ut-i  ver  ■»»*rni»iauu  ^u  iiu  uiiMir  iiah 
.t>rr:u.^  .  ^^  .  i  ;  *i»^  nnii  i  /-jmiuiMMvinc 
riv -1     *..-.^u  -.yc*:**^   Jill    racontr   nerKm^r  in- 

r.c-;    ?    i\-     •••"  r    vr    i"".l::««*    u    awtt    »av 

Us.-     :i :.»•!       ■^■*-  V-     :  •.  viir«v   tis*?,    *»- 

■•- :i.  .  ■  .  -^  :.  '.:  -'"ws.-i 'ti'i:'.r»»>*f.  .f— jilur 
I      :.  -      .tj<^.  i^«.        :::^    LiU    I'la    lUlcMIbb 

ft'r-  .:•  "•  •:  :  — '^r  ;:.'-»i.  Ur!»e  w»-ii  U'Wtv-utfi 
.'.'7"  :.  ..^       :.     »»■«•    ?«uaia«r«i  v^ia   i_a 


:   i-'    .' «.  -.-.t.- 


u:;:e 


e     ii-  •■■  ■..     -.      r-      -r,  — .  Z     r     ».. 

■  ..  ■•  ■:«  ':■■-.  -  -  ■  ■  :  .■  r-'M-v-e 
f..     US'    ".i      "     n  ,-;•  ,T- .  ,r.       ...     ,1. 

usr.u:  .  t    r'.r*-'!     *•■  .  .  ■^-.•:.  •     ,.'   .mnu": 

»T    2is  iiir-t     .:•■:■    ...  rannrir  ■  I-:     — -nii 

ain.  A  T  2i  *■-.  fill  tr.  ".e  snii'.:.  -s  '.o- 
■Hnr».  -fiin  «v  ■  .,.  •^nn'-s  .jznttie  .-mr^^s  fMjur 
Jr-~  ^B*  »niv  Tme-i    ^*snita  •>iii« wines. 


-niOK  ::itf  L-umir  mit  uiniBiiiiiff 

i'i.  ZiH^  jtf  laiiis  ii?t3  imt  ail  irfuflr  kLMiiA 
11  "iiiir  lar'niw!  in*  w  ih  imttflr^iniiit  v.ca  cais 
■Rjniixiiiiix.  *liat  :uH  iniiiiwiB  'ii;  a-v^iilm  m^^r- 
istff.  uiii  tj  mr!  i«nT-«:  mariiey  w»r  u.»- 
iiiliii  ^::(mrvi.  r!iH  irMrBmannu.  Jitc  Htsm^ 
•inmuc  ic  iiH  nsmmc  •t'ii^s  if  C«mnar.  vtiiidk 
H  t'.e  ji!3ii    nirrnrt  ifix»s  hi-]"^.  li'i    c  Msar 

Jtt.  EiRD  lie  iii*finiKrf  nniiit  loiiw  3i  die 
'<au«v«tie*iir^  ir'  ui  ubyvf  innn  tne  '"mi  i»  OK 
iiuniiic  in  Iim  «u<w  luis  if  mrtmneni^  j^n  ifttt 
TT^e  if  "tie  iiuii;iiur  ^iH^jf  -a  :tie  pbc'MS  rf 
i:n:r  rallies  iii*  ir«r.  31s  iiu]irfBe  anile  nr 
AmiiiniT  iirr^s  ir  jnniKiIe*!  vmj  .  inc  jil  iiiB 
iUDHwa  n  yjix  if  noeiliini  itfrvrrzr  'Haob 
uiu  iRRcsn.  'V'ltiiiiiT  iihain!TXfNi  if  lenuiraL 
v*sr  yiiw"^T!'i  19  Hteait  ^luft  3iu{t<!Kii»  himc  : 
luw  ji»  nuiesntt  m^iiir  t  iciniuiii; 
IDH  iie  villi*  iHi  ikHB  ir  luriansKiit  Jiaiiip  datt 
*Tiniiauin]  11  "iiiic  le^r  ruiHiiniiiuD  it'JUi  mi^ 
inB.  r  'liiipE  "u  •CEoniflr  He  iefiHiiitffai  Mem^ 
iiM  aiiiim  mi  inuii  ^nar  •muixps  jiui  ox- 
leBseK  imi  :ue  na^e  if  x  won  !br  •^awBO^ 
tt  lie  n-rTior«. 

w.  3'*  lis  naii*?t:i-*  n-KSTOB  jct'if  "iBiiBm— 
line,  tie  imniuuls  ur*  kk'iqTO»  iiiiiiini  jbA 
uttiii  I  rmiaane  me  ssic^am  •ft  unvvs.  «^ 
He  sume  s  nny  if  4Ut.*u  »  liii  SK  hhk  ou 
DiuvKitr  1  luR.'  io  iiar  -liii  in^  «tr  jiic  nr- 
^uailie  ir*"M2n.  -tk  fucsx  n  -tiein  yi  <Kac  •mc 
iier  -Rfr^^ims  mu  lur^vs  uii  tna^y  anx  *iai 
nuiMQi^  iirst.  inu  m  rmnoi  Tmm^  ui  ttos 
in«wrTe»is^  li  me  nunpc  -sRwcTailie  *'iin^ 
lu  u'^zieniv  riiinnumi&  ul  11&  ;uii^«^iiir^  in 
Durryns  ue  ^aia  ics. 

iiif.  't  »  irfvrr't  jn  w  irnvfoi.  imr  linmi  ;li« 
"^'ne  IT  tu  uuescm  inir*HinanuB.  Mr*  L^ni 
'.'uov^Iar  ixrnc  •nsii'-Hiain'i  ii  ii»  niif 
7"s  ir?T-»-  -jimisil  He  rimniiiii  ir  vne  raTiv  .aT 
7'  :*.  im!  nui  Ufef  w^r  rimimaiei  if  itiiwii 
:>--:  nv-riiu:^  lu  mu  K>*m,  riH-iusr  imansjait 
uii-".:r:rTi::r  ii.r»««s  rr  L  e«.ter  uxma.  11  -ny 
..rn  ^.-'TTUTc  "»"•  'nYuize  *2niT'HMni  n  tMte^ 
^Iora  i»  1UL3  "ht?r    ivrn?-*    ii'ifMeff:*!     ir  '•i^ 

u.   i.:ue    icii    ^nazn    ue    'rnuxir*'.    UM  11  :k 
rai-ie  !r'-T   ■jL^^-ftowmeai  TTfa  'ne  -utmif  »-- 

127.1  -s»t:r.  iiae  tm  -ncn  t  "u*-  -i«iu:s  i« 
vij  :  L-.  --  r.rir  i'jj-ws  siDilea  Trtii:  ntdD.  'W 
T»r-»  'cr.Ti-^^.v^  mir:  or  TTl^•sii  '*i^rn  p  ^^ 
-."=:;:•■  .-•Ttf.   tvJ:~^    n«t    •HEttr   r»»fii  i.-*  nun 

>^'i-    xi'     r.ir  %.-re"iC2a  j«    >riM«»#:nj«i, 
ei:"  3C   -017   i;!i«rni:i=    r-int  ,iig^-  u-v  . 


i-*!*:.   ,r    .    ...    t.'.s*-    ill   u:?s.  uai   mu  »i 
-ns      r-    ■-u:»*'-'iirii:::ai-   -race  Q 
•ni"'    He     —r*ni:    'i    ontt   iaa.v»-:    be 
■t :ae-fjav«<  via   mx  jm*    o  juiiiip  1 
jTtnisc    -cvptia  '•on    "^iinik    JMm  -m 


ft'i]  /or  Abitnct/ram  the  King^i 

To  tlie  fiec«»D<1»  it  is  answered,  That  the 
proclamation  was  90  notii1l^f1f  that  public  ran- 
tk'vou:£f^  did  Uici^upon  eusewe  tbrowe  all 
Scotland. 

To  tli€!  3d,  Tlie  militia  is  not  txdiisive  of, 
hut  canbi*it«i»t  niili  i\m  (eudall  aod  natiooal 
duty,  tliQt  lyes  u|>on  crery  heritor,  and  has 
%'i3ry  juiitUc  b^en  cverfouod  so,  and  is  tiatioraJie 
litquiesced  to  by  the  people  who  since  thooa 
act^fov  the  militia  have  cotiie  out,  and  we  see 
that  both  iiiililia  and  heritors  are  litle  enoujcrh 
for  our  deiience ;  lykeaa  by  the  25  act  S  sess, 
1  par.  Ch.  2d,  wherein  the  niiUtia  is  granted, 
it  if*  d»<elaired  that  the  kingdoine  shall  Ije 
reii'M  '  St  sixtie  and  mxteiu  it' his  majestic 
>hvi  t  der  use  for  them. 

'In  the  nnirih,  it  uefds  no  answer;  and,  to 
the  fytih,  it  deserves  no  ans^ver,  ejtcept  the 
letter  wer  jiroduced,  for  private  men  carmot 
make  up  the  tenor  of  letters  from  tlie  counciil, 
which  must  be  known  and  ex(»oncd  by  the 
context  I  as  to  the  sense  of  which  private  men 
may  be  uMt*taken ;  but  to  shew  his  majesties 
juiitire,  it  is  found  relevant  of  consent  that  per- 
sons wcT  unable  to  trnvell,  hkeas  it  is  found  re- 
levHut  of  consent  that  their  horsc-s  wer  taken 
away,  eo  that  they  could  not  i^oe,  they  having^ 
done  exact  dilijjence  to  get  other  horses  and 
taking-  their  declarations  to  ^bow  that  the 
hor»es  wer  not  taken  away  by  tbeir  own  con- 
nitaucc,  wherliy  each  Tnau'  might  fumiJih 
himxt'lf  with  an  defence  by  causing'  his  horse 
be  taken  nwny,  and  without  thistlier  is  no  pos- 
sibir'     '     '   low  what  was  counivaucc. 

•^  LiKkhurt  duplies  for  ihe  pannels, 

tlj;u rcuces  ^tMnd  relevant  notwithstand- 
ing of  the  reply e,  for  as  to  the  acts  of  parlia* 
tiient  Jybelle<l  on,  they  doc  not  at  all  concern 
the  case  of  parlies  not  coitiino^  to  the  king^^s 
hoiit,  which  by  e\j»ri.-sae  and  po«iti%e  act&  of 
purlinment  in  K.  Afejtandcr  t2,  and  K.  Hobert 
1,  lytue^  IS  dHyuedt  stated,  and  iletermined  ; 
and  lieio^  H  stattitorie  pufiiidmieut,  it  cannot  be 
C3CC€edit  unlcfe^  thcr  wer  a  (posterior  act  of  par- 
ti aiuent  im|w»8in^  a  (rrrater  punishment  upon 
lh(?  ^inie  cryrne,  particularlio  condescendil  on, 
it  1>  nripk-  %n  law  Uiut  *■  in  totojure  ge* 

*  i>  r<!tt.>iii  dero^aniur/  and  wher  laws 

ni'  tid  defynes  and  considers  cryraea 

pLu  it  [*|U.  and]  doc»  impose  specific 

IHJ  '  •"  J^"-  >^  Mfie,  siibse()ue4it  general 

as  ntieut  are  nefer  uDftor- 

Ax  to  ihe  Kccond,  the  defence  it  is  most  rale- 
▼ant  that  by  thu  nets  of  parliatuctii  fotindit 
kU,  and  ull  otlii^TS,  it  \h  e%i'r  requyr^  iw  ane 
>n*^.f  roTjitition  thereof  that  (tcivons  should 
l»t'  and  unlcsse  it  wer  allc<l^ed  that 

hi  -(  pn>i*btiiatiou  was  intimate  and 

p>'  Ompar,  lb*?  head  hur^U  of  ttie 

ah  1%  thcr  waa  00  ftitlTicient  intitna- 

tit'ii  '        lion  itself  does  txprt^slic 

ptr   ri  1  ;iii(|  rci^uvrc  intuuatton 

1-  lii^paii- 

fiiU  .».*.  ^*i  ,i*^.t..,  «ii,.t.  ... ..,...,.;.»,  »iut  to  goe 

iiAli9SfitbepnK:liiiuitioiis  bud  been  so  published^ 


Ho$L 


A.  D.  l6S0. 


▼am 


An  to  the  third,  it  is  replyed,  That  the  acts  of 
parliattieiit  establishing:  the  militia  are  opponed 
which  relate  to  and  are  foondit  upon  the  former 
acts  of  iiarl lament,  and  particularlie  (hat  aei  , 
of  kinvC  James  3.  lylielled  upon  ;  and  althoo^^ 
it  is  not  contraverted,  but  tliat  notwithstanduifif  < 
of  the  establishment  of  the  militia,  his  nmjestie 
may  rcijuyre  all  fcnsible  men,  betwixt  Mxteia 
an*l  sixtie,'  torcpaireio  his  host,  ia  which  jcasdi 
heritors  who  undergoe  the  trouble  and  expeoie'^ 
of  the  mihtia  cannot  excuse  themseWes;  yet 
ther  being  no  such  general  proclamatioDi  can- 
ing- all  fencible  men,  hut  only  calling  heritors  ^ 
and  their  followers  in  the  particular  shires  men-  i 
lioned  in  the  proclamation,  the  ebtablisbmenlj 
of  the  militia  oug-ht  to  exoner  the  heritors,  ex*  ] 
ccpt  iu  the  common  case  that  his  majestic  1 
thoufrht  (\i  to  call  all  hk  subjects  conforme  ta| 
the  old  acts  of  parliament. 

As  to  the  act  of  indemnitie,  oppons  the  same, 
and  referrs  the  consideration  therof  to  the, 
lords;  and  the  presence  of  tlie  militia  forces | 
ought  to  exoner,  and  most  he  looked  upon,  a«| 
ane  a^istance,  so  as  to  give  the  beneOtt  of  thej 
act  of  indemnitie. 

As  to  the  last,  repeits  and  oppons  the  de* 
fence  and  the  lords  of  prii'ie  councill  having  J 
wreitien  a  letter  of  the  tenor,  mentioned  in  the  J 
defence,  and  upon  the  consideration  of  the  ha-I 
7,ard  that  the  rebellion  mi^ht  break  out  in  thalj 
countrey,  the  pannalls  who  are  able  to  fountll 
upon  the  termes  of  the  said  letter,  ought  to  bol 
e?t:cused,    and   it  is    positivlic    ofl'eretl   to   b«J 
proven,  that  as  to  tlie  persons  to  be  condescendil  I 
upon  ther  gY>ods,  wer  rifled  and  tber  hon»etl 
robbed,  wherby  they  wer  incajtable  to  repair  Uki 
his  majesties  army,  and  the  pretence  of  ijiniu-»j 
lation  is  nowaycs  relevant,  unUifse  ti  v^er  pro«i 
poufHl  positive,"  and  offered  to  be  proven,  and  if 
need  beis  the  pannalU  arc  content  to  purge 
themselves  by  ther  oath,  that  ther  wa**  no  8i<« 
mulalion,  butthat  ther  liorses  were  r^tbbed,  anilj 
so  they  have  clearlte  the  br^nefitt  of  the  lords  < 
privie  councill  tb*'r  letter,  and  it  will  clearlia| 
appeir  by  the  probation,  to  be  led  tipoa  iba 
exculpation,    ami   cannot  hut  consist    ia   tfai 
knowU'flj^e  of  such  of  the  lords  of  justiciarie  i 
are  upon  the  privie  councill,  tlmt  the  said  Irtter  J 
w«H  ivrf»lt  to  my  lord  Newark,  and  who  beiti'* 
called,  may  be  able  to  produce  the  same,  ai 
by  the  councill  bookcs,  it  will  appeir  ther  is  a] 
warrand  from  the  councill  to  the  chancellor  tO| 
wreitt  to  the  lord   Newark  for  securing^  th 
peace  of  the  countrey. 

litterloquitor  upon  the  General  Defences 

The  lonls  justice  jrenenil,  juslic*e  clerk,  and 
commissioners  of    Ju>uciarie,   having  tonsi*, 
dcreil  the  lyWIl  and  dthste,  ib*'V   r«"pill  th 
fip«t,  thini,  ao'l  fourth  detrnoci* 

The   hnU  also  repel  I  the  S4 . 
respect  of  the   1  1    uiao»     n-/   me   h^rdl 

Newark  at  Iht^  r  of  the  militia  con-] 

forme  to  the  Uhm;  ^  1  -rr"*  -  •      jnd  o( 

his  appuyittui^  kuf  1  :itormJ 

at  Levui,  which  ac4^^.^*;.^..^.  «*«-«  ^^<^\  by  a 


J7J 


32  CHARLES  IL      Proeee^gi  agMinit  tie  HfesMre  Heriiart,       [fl 


As  to  the  fyft  defen'^  fouodit  upon  the 
[qu.  Ciiuncellors]  letter,  the  lords  superseid  to 
give  (letur mi  nation  tlierupoD,  as  it  is  proposed 
in  gcncrall  for  all,  re&erviag  to  tliemseWes  to 
determine  thcrupon  as   occurs  in  particular. 

TuE  Particular  Qefemcei. 
Kilbrachmont, 
Mr.  William  Monypennie^  for  Hamiltoun,  of 
Kilbrachmont,  alleadg^,  That  the  tyme  of  his 
majesties  proclamation,  his  horses  being  not 
only  stollcn  from  him,  but  his  servants  deadlie 
sick,  yet  such  was  his  zeall  for  his  majesties 
service,  that  he  went  to  Faulklaud  markat  and 
furnished  himself  with  horses,  and  did  come 
the  length  of  the  South-ferrie,  and  tar^-ed  ther 
two  dayes,  and  returned  witli  the  rest  of  the 
gentlemen  efler  the  rebells  wer  defate,  and  is 
content  to  take  the  declaration. 

Deserted  at  to  Menttrie, 

Mr.  William  Hamilton,  for  Howburne,  of 
Menstrie,  alleadges,  he  is  past  tlie  age  of  sexUe 
years  and  is  not  sensible,  [qu.  fcncibic]]  and 
sent  out  his  meu  and  horse,  who  attcudit  his 
majesties  host  ull  the  tyme. 

The  lords  tiud  this  detence  relevant,  and  in 
respect  of  the  nottoriotie  of  the  defender's  being 
past  the  age  of  sextie  years  deserted,  and  l)e 
thir  presents  deserts  the  dvct  simpliciter,  and 
discharges  the  raising  or  taking  up  of  any  new 
letters  or  dittay  agaiuest  the  defender,  iiir  the 
cryme  above  specifit,  in  tyme  comi:ig,  wher- 
upon  he  asked  and  took  instruments  and  pro- 
tested for  his  cautioners  relieff,  which  the^saids 
lords  admitted. 

Largo  adAssisam, 

Mr.  William  Moniepennic,  for  Durhame,  of 
Itart^o,  alleadges,  Tliat  the  tyme  of  his  ma- 
jesties proclamation,  his  house  was  assaulted  in 
the  night  tyme  by  several  armed  men,  who 
threateiic'd  to  putt  Vyre  to  it,  nnd  who  did  nc- 
tuaiiie  take  away  Ins  hordes  and  his  furniture, 
anti  he  did  endeavour  to  furuialie  himself,  and 
did  iidd  outune  of  his  own  hur^eiii  which  he  of- 
fered to  reilcem  at  any  rate,  but  he  could  not 
have  tliem ;  aud  he  otl't^rs  to  purge  himself,  by 
ane  soleiiiii  oath,  tliat  thore  uus  no  collusion 
between  liiin  and  the  rebells,  but  that  his  hoi*ses 
were  furcildie  taken  awny. 

31y  Lord  Advocai  answers,  That  the  doR-nce 
ought  to  be  repelled  as  to  that  which  may  be 
collusion,  t:.\'cr|)t  the  person  purge  hunself  by 
takiug  the  dec-Iuration,  thcr  being  nothing  more 
easie  then  to  disNcmble  anil  cover  this  collusion 
by  oath  ;  some  friends  and  relations  maj^  all- 
wa}cs  cause  take  away  a  mau^s  horses  without 
hisown  ex[>n>«i<k;  knowledge,  so  that  the  event 
should  be  that  only  men  of  lovifll  principles 
should  as  ant-  reward  of  ther  loyaltic  be  ex- 
posed to  all  the  danger,  and  put  to  ull  tlie  trouble 
of  opposeing,  Iwth  by  ther  indeavours  in  tyme 
of  peace,  and  by  ther  arroes  in  tyme  of  ware, 
whilst  these  who  are  of  pernitious  principles, 
shouhl  Iwve  thcr  crymes  made  a  protection  to 
them,  againest  all  those  troubles  and  ezpences. 


Mr.  William  Moniepennie  raplycs.  That  ths 
detence  stands  relevant,  uulesse  nis  Miyesties 
Ad»ocat  will  positively  allead^  that  the  dts* 
fender  diti  actuallie  collud  with  the  robbsm^ 
which  is  found  relevant  of  consent  to  be  pro? sd, 
SAd  his  ofifering  to  purge  himself  by  bis  nath  is 
su^cieut  of  itself  without  taking  the  declaim* 
tion,  unlesse  my  lord  advocat  will  poskivelis 
offer  to  prove  simulation. 

Bruntoun  ad  Auitam. 

Mr.  Trt7/iam£ea/on,forLawo,  ofBruntoiu, 
produces  two  testificats,  ane  under  the  hand  si 
the  minister  and  elders  of  the  parrodi  who*  he 
lives,  and  the  other  ander  a  phisitiaQ's  hand, 
bearing  his  sickness  all  the  tyme,  and  bendss 
he  is  |>ast  the  date  of  sextie  years. 

Di/et  desertedj  and  Letters  discharged  againU 
Captain  Murray, 

]\Tr.  Colin  M'Kemie^  for  Captain  Gidesa 
Mun-ay,  ol'  Pitkerrie,  allead^  he  is  past  thn- 
score  years  of  age,  and  for  instructing  theraf, 
produced  the  indenturs  past,  betwixtliim  and 
William  Miiir,  merchant  in  £dinbuigh,  dated 
the  eletinth  of  Jaimary,  163r ;  and  iarder 
allcadged,  that  he  was  sick  and  unwell,  all  the 
tyme  of  the  host,  of  a  dan^rous  sicknes,  so  that 
he  was  liker  to  dye  then  hve,  and  produced  two 
testiticats  for  proving  therof,  one  under  the 
hands  of  Dr.  Craw  turd  and  liavid  Pringle, 
cbirurgeon,  and  the  other  uuder  the  bauds  of 
the  miuistei-s  and  eldei-s  of  Kikeny.  The 
lords  in  respect  of  the  nottoritie  of  thir  defenoes 
deserted,  and  be  thir  presents  deserts  the  dyet, 
simpliciter,  and  discharges  all  new  letters  or 
diltay  to  he  taken  up  or  raised  agaiuest  the.de- 
fender  for  the  cryme  forsaid  in  tymo  coming, 
wherupon  he  asked  and  took  instruments,  and 
protested  for  his  cautioners  relieff,  which  tbi 
saids  lords  admitted. 

BaUanquhill  ad  Assisam. 

Mr.  Alfjander  Mnleolme,  tor  BalcaDqahiO, 
of  that  Ilk,  alleadges,  that  tlie  tyme  of  dm 
proclamation  his  horses  wer  taken  away. 

Sawfoord  ad  Assisum. 

Mr.  William  Moniepennie^  for  Nairn,  of 
Saiufoord,  alleadges,  that  he  bavins  upon  his 
majesties  Proclamation  sent  out  three  mcD 
with  horses  to  sene  his  majestic,  in  respect  Iw 
could  not  attend  himself,  being  ane  foot  cap- 
tain of  militia,  and  having  thcrettcr  endeavonred 
to  convein  his  comiKUi^,  could  only  raise  the 
number  of  ten  men,  which  being  offered  to  tiie 
earlc  of  Weymcs,  coUoncl  of  tlie  reffiment 
by  tlie  defender  himself,  he  adjoyned  them  to 
another  com]»auie,  so  that  the  defender  couU 
not  serve  his  majestic  in  the  quality  of  ana 
heritor,  his  horses  being  sent  awuy. 

Glenicston  ad  Assisam, 

Mr.  David  Deicar^  for  Weyraes,  oi*  Gle- 
niestoun,  repeits  the  samen  defences  proponed 
forSamtbord. 

Ily  Lord  Advocate  alUeadgesi  the 


fm-  AhwnttJT&m  ike  Kki^M  fh$it 


A.D.  1680. 


[SO 


hiide  wilnotit 
no  m^n  (hty 

3  any 

•tj    trj 

.  .-  lyme 


il  nowivs  f^tevant,  for  tlie?  sbodd  hare  gone 
to  the  tost  with  1h  '  '  " 

collors,  and  tlioii£rlt 

V(. 

,thal  *.  , .t.,>.  ..^,  i,    ...... 

Principle  of  disloqunlitie  or  <1 

Ofli 

j  try^T  lid  hufifie:  g-ooe 

I  lome  way  tu  attemlf  niHviith^tumlitig^  of  her 
indispofiition,  heing'  \i\^r  nith  chrfd,  >€t  she 
did  frtllowe  hiiD  a  curv  ^*  Hy»  with  wove* 

ml  onthit  that  sIk!  ^^  >  ^  leave  him^  and 

she  dyed  hrr  blooU  vrouUl  l>e  on  hii  hemd, 
id  m  aaagerous  wai  her  condition  that  the 
feW  down  In  ihe  i^&y,  in  n  manifest  hazanl  of 
•hortioD,  so  that  he  was  neccssilat  to  return 
witli  a  resolution,  that  if  the  wer  any  hetler 

I  be  would  repaire  to  his  majesties  h(»t,  anddid 
iceep  his  horse  for  that  eff<K;t. 

His  Mujfsii^i  Advctai  makes  no  answer, 
but  that  U\%  absence  appeirs  to  have  bciu  from 
dissatistkction,  soeiikg  he  rduses  to  take  ths  de- 
claration. 

It  is  proposed  for  Mr.  Alcirandcr  Nairn,  of  Liile 
Treiertoun,  that  he  was  sick  fit  the  tyme, 
which  is  attested  bj  ane  declamtiou  under  the 
bund  of  the  arch  dean  of  St.  Andrews,   and 

F  that  \m  DKither  KfFrents  his  wholl  larnJa  and 
tiroduceil  Xlwr  lyflrtnl  iiifeftment  for  instruct - 
jn^  iherof,  iind  that  he  lives  in  the  toiiu  of  Hi. 
AudrewS)  and  watched  and  wardit  ther,  and 
iitrer  kct:pt  a  horse. 

S(  rat  her  lie  ad  At^isam, 

Mr*  James  Graham,  for  Lundie,  of  Stni> 
He,    allead^es,   that    his  horses   wer   all 
I  away,  oikI  he  is  content  to  take  ibe  de- 
tion  for  lestitieing  hii  loyalde, 

Itrdie  ad  Ai$i9<im. 

Mr.  Wiiiiam  Mmiepennie,  for  Georg-e  Mon- 
criff»  of  Re*lie»  alleadges,  that  the  lyme  of 
ihc  Prot  Uin»ation,  notwith^tandin^f  bis  Inily 
was  extreuiche  sick,  \et  he  was  i^o '/imlotis  to 
*  menet  his  rnajc^iie  tfmt  he  keept  the  first  ren- 
I  devouze,  and  did  actualHe  send  forth  ane  young- 
I  i^ntleniau,  im  own  broihiT-iO'lawe)  who  was 
f  not  ivnc  heritor  InmHelf,  and  was  a  trained  soul- 
dier,  with  this  condition  that  he  shotdd  serve 
id  ihe  defeijder^s  name^  and  if  he  Hhttcitd  not  he 
l>ccavc-d  i\\  lii^  niihHtitutfthat  he  should  return 
the  sauH*  111  lit-  111  It  \u  iiii«rhi  q-ne  himself,  and 
he  wa»  ;i 

Mr,  J  .  ir  James  Hinclair, 

of  Kirinmii},  in;  was  sick  and  in* 

firme  .ittU**  t\  i  it  out  hor>€  and  men, 

and  proilurew  its,  onv  from  the  loi- 

fiiHivnif   and   i^-  m    the  phisitian,  ibr 

provein^  then^oi,  aud  i»  oontcnt  to  lake  Ihe 
declaruti^m. 

It  was  allevilppeit      '        ^  •     ■ 

!    demie's  soil  and  a* 

I    at  thctymc,  h*  wa**  -  ju  htm  hi i  h-^tiuj  ynu  luui 
I    bis  bone  was  takou  £rom  his  son. 

L 


Phinmont  dtscrtt  ttnd  diickargti  Letttn. 

It  h  alledged  for  itrown,  of  Pbinttoitt,  tblff 
he  IS  past  sextie  years  of  age. 

The  lords  in  respect  of  the  nottonctie  oftbii 
defence  deserts  the  dyet,  and  dischai-^es  all 
newe  letters  or  dittay  againest  the  defender  far 
the  cry  me  abore  specifit  in  tyme  ooming. 

Pitlochie  ad  Auinm^' 

It  is  alleadge<l  for'  Murray,  of  Pillochie^ 
^riiat  he  is  no  heritor,  nor  keept  he  a  hnrstt 
this  tweke  years,  anil  he  is  readie  to  renounce 
his  heritage  in  the  king^st  favours* 

My  Lord  Adtocnt  nnswers  that  ane  heritor 
by  the  courtisie  of  Bcotland  is  in  all  respect! 
ane  heritor,  the  conrtisie  being  a  legal  I  dispen- 
sation daring  the  lyme,  as  a  comprysing  is, 
and  therfor  seeing  he  is  in  fcudohe^  should 
serre  upon  the  aocount  of  hts  feudatortc  obli* 
gation. 

It  is  replyedi  that  the  Proclamation  is  op* 
pOQed  which  calls  only  bentors  and  free- 
holders, and  ihe  pannal  is  neither  baitor  nor 
free  holder. 

The  adf  ocat  dupip,  that  the  courtisic  is/eu- 
dum  ad  lempus^  and  consequently  he  that  has  li 
is  duiing  the  tyme  ane  heritor. 

Kyninmond  ad  Assitam, 

Mr.  Jama  Aleiandcrt  for  the  laird  of  Kynto- 
rnonil^  alleadges,  be  was  sick  at  the  tym« 
as  ane  teslificat  upon  souU  and  conscience, 
under  the  ministers  hand  testifies,  and  a  decla- 
ration under  the  phisitians,  which  is  sufficient  ; 
lykeas  he  has  raised  exculpation  and  cited 
witnesses,  who  are  able  to  prote  that  hs 
hor?!s'd  his  brother- in -I  awe  the  laird  of  Karas, 
whose  horfses  were  stollen,  and  that  he  s«nl 
another  horse  and  his  own  mun,  well  armed 
who  attend  it  this  majestie^s  bott,  ayi  and  vvbtU 
the  rebels  wer  defute. 

Mr,  Dcitid  Dettar^  for  W«ymes,  of  Glenies* 
toun,  allcsdges  alsOi  that  he  was  sick  and  sent 
out  his  xnt^u  and  horse  armed. 

My  Lord  Advocat  answers  the  tame  is  not 
relevant,  piTsonall  [iresence  being  requyred, 
and  the  defender  refuses  to  take  the  declaration. 

Graingmyn  deserti  and  discharges  LeiUrg^ 

Mr.  Alexander  Maicolme^  for  Robert  Kin* 
net  11^  of  Graingmynfi,  alteadges  he  is  a  mean 
herilor  not  excet'ding  ane  hmidredth  n^erkf, 
and  nut  being  abte  to  furnish  a  horse,  he  ther- 
for went  on  foot  The  lords  therfor  deserted^ 
and  be  their  prrsents  ['pi,  dpsert  or  de^^erts]  ttic 
dvet  simplicilor  and  fUnchHrges  all  lelfer^  or 
dittny  agftiufit  the  defender  for  the  cry  me  obofi 
specjfit  in  tyme  coming. 

Dowhiil  coniinufd. 

I      Mr,  n«/  for  John  Lindcsay,  of 

OowhiTI,  n!  1  hat  at  the  fvme  of  the 

•  '  '    '       ''»     '     T.  of 

alt 


* 


31] 


32  CHARLES  IL      PtocmUngM  agaitui  the  FiftMre  Heriion,       [ST 


tcntetl  Lc  hade  bein  taken  prisoner,  oat  of  his 
own  boiuc  at  Culrose,  and  all  his  arms  were 
takim  from  hifn,  so  that  when  he  was  sett  at 
lil>vrtic,  he  was  putt  under  the  forsaid  caution  to 
attend  all  the  dyets  of  the  proces,  and  so  was 
under  an  absolute  necessity  to  wait  the  coun- 
cil! *n  fard«T  order,  seeing  the  proces  was  only 
c«)iitinucd  from  day  to  (by,  and  if  he  hade  not 
nppcired  at  e?ery  day  he  would  not  only  bein 
declared  fufritive,  but  his  cautioner  would  have 
fuHiiult  the  10,000  merks. 

Mv  Lord  Advocat  answers,  That  1.  He 
should  have  made  application  to  the  councill, 
dosyrein]^  to  knowe  what  should  he  his  cariage : 
'2.  The  proclamation  would  have  defended 
liim  if  he  hade  g^ne,  and  beings  the  posterior 
order  took  off  all  former  restitiint:  3.  This 
viiiui  be  no  defence  why  he  sent  not  out  his 
nifu  viiice  the  councill  aid  not  disarme  them. 

Thi!  lords  continues  the  dyet  againest  John 
liiuihay,  of  Dowhill,  till  the  thud  Monday  of 
June  nixt. 

Bandon  ad  Assisam, 

Mr.  WilUam  Beaton^  for  David  Beaton,  of 
lluniloii,  alluailgfcs.  That  hiswvHTwas  at  the 
poynt  of  death,  and  he  sent  out  ooth  horse  and 
liMit,  a.4  a  testificat  under  the  lievtenaiits  hand 
ti'Mtitii's,  and  be  is  content  to  take  the  de- 
claration. 

Baibirne  ad  Assisam, 

Mr.  James  Alexander^  for  Balfour  of  Bai- 
birne, ullrad|(es  he  was  sick  at  the  time,  as  ane 
Itwtittcat  prmloced  bears,  and  the  horse  he  pro- 
vidit  was  taken  from  him,  and  he  is  content  to 
^Ito  the  declaration. 

Fordcll  ad  Asiisam. 

Mr.  WillituH  Beaton,  for  sir  John    Henry- 

IM, of  Forilell,  alleadges   he  stnt  out  three 

hoiw"  and  three  men,  and  at  lh:it  tiri.c  lie  was 

unabW  to  iravcH,  as  anetestificat  under  the  mi- 

ttMtna  hand  bean,  and  its  nottor  he  was  not 

^t  ihirthiw  years  bygone  todraweon  aiic 

^at '  Ktotf  he  was  one  of  the  ^^entlrmpu  a.'- 

wTJiitt  ilav  al  borne  by  the  councill's  letter, 

uJSlby  the  Lonl  Chancellar,  as  a  person  iin- 

iSllK  i^nif  totka  host,  be  reason  of  his  cor- 

ttaWnck'  ittdi  niftnniha« 

Ctumgmy  ad  Assisam. 
Mf  Ditid  Dowr.  forMdvill,  of  Cassin- 
Z  iSlJ^U»««»«*  license  for  him 
ViTwSS  teiiya^*'®'"®  lie  wanting 


h 
•L 

Ofi 

of  y 
wfaiU 
•houh. 
tbem,  I 


IVi^rti  tad  *»*»««  ^"«''- 
W  ^  «mM  fcr  Wbert  Cuninghame,  of 

4ta«iiwMto«MM 

lb«»ti«MftW^ltairfteBurgh, 


01  to 


the  saids  Robert  Cunninghame  and  Henij 
Shanks,  and  diacliaiges  all  new  letters  or  dittay 
againest  them,  for  the  cryme  forsaid  in  tyme 
coming. 

Mr.  William  Moniepennie,  for  Mitch^,  of 
Balbardie,  allcdges.  That  he  being  conveined 
befor  the  circuit  at  Coupar,  he  proponed  a  re- 
levant essoney,  which  was  proven  to  the  jndgct 
so  as  to  him  it  is  res  judicata, 

Mr.  John  Lauder,  for  Mr.  Charles  Wmrdkw, 
propons  the  same  defence. 

His  Majesties  Advocate  takes  instmmenta 
that  the  haill  pannels,  except  Hay  of  Be- 
houssie,  do  judicially  confesse  their- abaenoe 
from  his  Majesties  host. 

The  Lords  continue  the  diet  till  the  twenty 
fift  instant,  and  ordains  parties  witnesses  and 
assizers  to  attend. 

Interloquilor  upon  the   particular  jyefenees^ 
25th  February,  1680. 

The  lords  justice  s^eneral  and  commissioners 
of  justiciary  find  tne  defence  proponed  for 
Thomas  Hay,  of  Balhoussie,  foundit  upon  the 
passe  relevant ;  as  also  find  the  defences  pro- 
poned for  Robert  Hamilton,  of  Kilbrachmont, 
Janicts  T/dw,  of  Bruntoun,  Mr.  Alex.  Nairn,  of 
Little  Friertoun,  Lundie,  of  Strath'eriie,  sir. 
James  Sinclair,  of  Kynnaird,  Kynninmond,  of 
that  Ilk,  David  Beaton,  of  Bandon,  sir  John 
Henryson,  of  Fordell,  Rolwert  Balfour,  of  Bal- 
bimic,  and  James  Melvill,  of  Cassengray* 
lykcways  relevant  and  remitts  the  same  to  the 
knowledge  of  the  assize  ;  as  also  finda  the  de- 
fences proponed  for  Alexander  Durhame,  of 
Lai'go,  Charles  Cowan,  of  Corstoun,  David 
Balcanquhill,  of  that  Ilk,  Alexander  Nairn,  of 
Sainioord,  George  MoncriefT,  of  Redie,  and 
Janios  Weymes,  of  Gleniostoun,  relevant  to 
alcviat  the  punishment,  though  not  to  elied  the 
\y\)iA\  according  to  his  majesties  gracious 
letter  and  rcmitu  the  same  to  the  knowledge 
of  the  assize. 

The  IokIs  repell  the  defences  proponed  for 
James  Young,  of  Kirktoun,  and  Murray,  of 
Pitlochie. 

ASSIZA. 

Hamilton,  of  Ilaploch. 

John  Stewart,  nf  (sairntullie. 

Gordon,  of  Cairnborrow- 

Mr.  Robert  lr\in,  of  Peilsyre. 
Geo.  Drununoiid,  of  Milunabb. 
Patrick  Tailzfer,  merchant. 
I'atrick  Smith,  of  Methven. 
John  Mont^romerie,  merchant. 
Duncan  MMntosh,  merchant.    ^ 
John  Brown,  merchant.  ' 
Josf^ph  Marjorilwinks,  of  T^icnchie. 

. liiiird,  of  Sauchtounhall,  younger. 

I  Robertson,  of  Strowan. 

Kinloch,  of  Bandoch. 

Charles  Maitland,  of  Pitrichie. 

The  Assize  lawfuUie  sworn,  no  objeetion  ia 
theoontrair. 


SS] 


/or  Ahiener/rom  the  Kin^'t  Uo»t. 


A.D.  1660. 


r« 


^ 


II  IK  Mttjtitm  AdfiKate  took  rnstniiticMitfl 
llnMt-'-    "  \*.,....A. «^'i'— -rieJiiKlc 

lb  a ..    ,-  -,.„.,   .....^v,   ^..  ,.. curling  of 

tltcsaiuen. 

Tilt'  clcfciiders  for  proreing  oflheirionocHnire 
ami  gx*>ui^^s  <>i' exculpation,  adttuccd  the  wit- 
ncs^ifs  uuti  oilier  C'fiilence  after  mentioned,  vie, 

Put^kh  Murfa^^M  of  Aiichtertyreragied  32 
Years,  unmarried,  purg^  and  swor  ne,  depones, 
That  he  saw  Thomaa  Hay,  of  BulbouEie  in  the 
king^'s  host,  in  summer  la§l,  and  that  to  the 
b€«t  of  ht!i  knowledge  he  was  tti  bade  condt- 
tione  oi  health,  and  that  if  he  hade  stayed  be 
Mroutd  have  heen  in  danger  be  rt^a^ou  uf  sick* 
«,  and  that  he  sia^^e  ui in  coining  offiu  thi« 


£le  condition y  and  that  he  liaue  him  have  the 
rquis  of  Montrose  pits«ie^  uho  Has  bis  rap- 
lain  ,  and  that  he  leii  three  or  tbur  i?ieii  well 
appointed  behind  him  iti  the  army  vuuta  ttt* 
tnUa  he  was  present,  and  this  ia  tbe^  truth 
as  be  shall  answer  to  God. 

Sk  SulfKnUhir^        P.  MifHRiv. 

Hf,  T%omQi  Ste&tirt^  mn  to  Mr.  Hary  Stew- 
art, in  Fearth^  purg^ed  and  tfworne,  depona  cnn* 
formi$  pri'cedrnfi,  except  that  be  did  cot  see 
the  paii^f  an<l  kno\vt«  that  he  bade  two  horses 
left  bdiiud  with  the  Unsi  at  least,  and  did  Tiot 
iee  him  come  off ;  and  that  to  his  knowkd^^e 
ontd  have  endang 
Sk  Suhscnbitttry 


[idfje 
libstayinj^  wontd  have  endangered  liis  healtli. 


Mr.  Rohert  Colt^  for  fardcr  probation,  re» 
Tieatia  the  tnaiquii^  uf  ?^luntn>se  pasae,  and 
lifjence  to  thu  pririnell  to  return  home. 

David  loni  Neuurk  hein||  irworue,  depons, 
that  it  was  the  common  repuft  of  the  country 
that  Uobert  ilamiltou  of  Kilbrachmonts^ 
hciraef  were  taken  away,  and  that  be  sa^ve  bim 
Qotnini^  on  his  toot  to  the  rantlevou^e  to  tell 
tbis,  caum  ti^mntia'j  he  is  hbuear  neiiibbour. 
Sk  Sutfucrilfitury         Nev^ark. 

Jam^t  Mehilif  of  Cassinofray,  beiny  so- 
lemnlte  sworne,  depona,  he  aaw  two  of  fJamil- 
ton  of  Kilbrocbmonts*  horses  to  the  rebella 
bawbf  who  robed  bun,  the  foresaid  rebelb 
having  come  to  Ins  bouse  to  have  robbed  the 
deponent's  bor^ca* 

Sk  Su  Ific  ribitufy         J  AM  cs  51 ELVUX. 

The  said  Robert  Hamilton  producetl  lyke* 
ways  ane  testificate  under  tbr  band  of  Mr. 
Wra*  IJay,  muiJstcr  uf  Kilcoui[uor,  testineingf 
that  be  iit  ane  orderlie  person  and  tberi'^lTrr  cf 
the  regular  and  orthodox  i  ler^^te,  and  that  bis 
bontes  Her  robb'd  and  ser^ant^  sick  the  tyiue 
of  the  bo*t,  and  yet  recruited  himself  and  ad- 
vanced some  con^ulmMi-  part  of  the  way  till 
he  heard  th*  ste. 

Jfimti  Cti  r  of  V'yiT,  depooa 

be  uawe  L#ft  '     Tie  sick 

tbf^  day  of  1 1 .  i  n  doctor 

who  was  will      I  i  It  was  the  misles, 

$a  /«r,        J.  CuAiJFoao. 

lU^crl  Balfuur^  at  Dalbimo,  btiof  iwome, 
VOL.  M 


depons  be  sawe  I^we,  of  Bruntouo,   lytiing' 
aidk  the  tymeof  the  bust^  and  Ueiii)(  bedtait, 
'  Sk  Sttbtvrihtiur^        ^.  JiAi.roua, 

Ti,p  ~ii  1^.-^^^  r-  r*  f'  '-ntn^  pro- 
duce'! uich,  ani'i 

Dr.    A..  ..  i..».v...,  .,   .. ..  iiooii  bt*i 

being  sick  of  the  meaails  the  tyme  «>f  fhw  bost^,] 

Mr.  Wii'         v  ";hV,  for>Ir    *^' 

der Nairn, '  »,  rciuitn  i 

ofDunkeir.v x  ..  -..h.vi.-.i  ,,.^  ;,f 

the  hfist  ufion  snal  an  it  b«  I 

is  ane  well  attacted  jm  ,  ^.  ,  g»i-  1 

Tcrnment,  and  lykways  repeits  bita  rootber**'] 
lyfTrentiufel^tncDt, 

Jfimcs  Crctufurd^  collector  of  Fyfft  dt-pon^t 
That  Stratheriie^ii  brother's  bortie  and  arm^  wer 
taken  away  by  llic  rebells,  and  Stratberiii 
hiniself  was  not  io  use  to  keep  borse. 

Sk  SubtcribitMr,       J.  CftAuronn. 

Jtsmet    PKcoirnc^    initter,    in    Edinburijli^l 
dcpons,  That  Htratherlie*B  brother  declared  iaH 
Dune  that  his  horses  and  armes  wer    taken  ^ 
a  way  by  the   rebel  Is,  and  that  this   ^Fai  tbi 
oonrmun  report  of  the  country* 

Sk  Subicribliur^        James  PncAiHNE. 

Dr.  Andrew  Rtilfour  depous,  that  be  ^v%  I 
constant  advise  to  sir  Jnute^  HincUir,  of  Kyn-  I 
naird,  the  tymeof  the  host,  be  being'  sick  of] 
aneaijfue  at  that  tymc. 

Sk  SuOscnbitur^        A.  Balfour. 

B^bcrt  Maitcr^  of  Uur^blte,  b<ing  sworn e,i 
de)M)n»i  be  gnwe  sir  Jauiest  Sinclair's  mallei 
James  Arnot  and  his  horse,  well  armedi  atteoil  l 
bis  majestie^s  host  all  the  tymc. 

$k  Subs€ribitur,        R,  0ALrot7R. 

Mr,  George  Arnnt^  wreftter,  in  Erlinbufc^h^ 
depons  sir  Janicii  Sinclair  was  sick  and  un^tH  j 
the  tyme  of  the  host,  and  not  able  to  travell,  I 
and  that  he  sent  out  his  horse  to  the  bust  who^ 
stayed  all  the  tyme. 

Sk  Subscribiiurt       Geo.  Arnot* 

The  said  sir  James  Sinclair,  in  farfJer  evi* 
denoc  of  bis  inuoceneie  and  defence,  producetl  ] 
ane  testificat  of  bis  sicknes  {ihe  tymeof  the  ^ 
bi>»i)  under  the   hand  of  Dr.   Alexander  BaU 
four,  and  another  under  the  hand  of  the  mi-  ! 
nister  and  ciders  of  Ebdie. 

Colin  Pitscottk^  son  to  genera II  major  Pits- 
cottie,  aged  Ihretlie  years,  purged  aniTsworne,  ^ 
depont,  that  Ky  uinmond  ov  that  ilk  wtkR  so  sick ! 
and  unwell  the  tyme  of  the  host  that  he  wait 
not  nh\e  to  come  abroad*  and  that  he  sawe  bipj 
iiuraesat  ihv  ho^t  at  Bothviell-bridtne. 

Sk  SttbjicribiitJi\         Colin  PrrscoTTii:, 

Jantfi  Ahercromhkj  of  T*och|fellic,  swornek] 
depons  Ryuninmond  of  that  ilk  wai  so  unvi'ellj 
the  tyme  of  the  host  that  lie  o^ftil  J  not  come  J 
abroad,  and  that  be  sent  out  bis  bon»c  to  tbi 
host, 

Sk  Suhicribitur^         J*mf*i  AnEtimoMait, 

Thcdefendei  .  m%i 

testiticiitaud  phi  _         Licitin 

unwell  ail  llv4  v^tsas  ^V  s.W>aS3ftiV' 

\   ft 


35] 


32  CHARLES  II.      Prcuedmg§  againit  th>  FifeMrt  Heritors,       [9 


John  Henrysoa^  in  Fordelgrein,  defions,  That 
Bandon's  man  and  horse,  well  armed,  attendit 
the  host  all  the  tyme. 

Sic  Subscribiiur^       J.  Henderson. 

Colin  PilscoUie^  above  designed,  deponsthat 

Eandon's  man  and  horse  well  armed  attendit  the 

bust  all  the  tyme. 

Sic  Subscribiiur^ 


Colin  PrrscorriE. 


John  Dempster^  of  Pitliver,  bein^  swome, 
dcpons  he  knowes  Fordell  Henryson^s  condi- 
tion to  be  such  that  he  was  never  sein  him  able 
to  loup  on  a  borte,  and  knowea  he  sent  out 
bis  men  ami  horse  to  the  host. 

Sic  Subtcrihitur^       John  Dempster. 

Alexander  Spitle,  of  Lencbat,  depons  be 
knowes  Fordell  Henry  son  to  be  intirme  and 
unable  to  mount  a  horse  without  help,  and  that 
Jif-  st:nt  out  his  men  and  horses  to  attend  the 

aic  Huhcrihitar^        Alexander  SprrrELL. 

David  licatpn^  of  Bandon,  being  swome, 
df'iKMiH  tbstt  the  moneths  of  May  and  June  last 
Jii/bf-n  lUlfour,  of  Balbirno,  was  sick  and  un* 
M»-  to  K**^  ^"  ^''"  majesties  host. 

Sic  Subscribiturj        D.  Betuun. 

pavtfl  Spitle^  servant  to  the  minister  of 
Miirkirif^bt  df^ivons  Balbirno  was  sick  and  un- 
■bUi  to  ifMVfrJl  the  tyme  of  tlie  host,  and  he 
orovidit  Hn«  b'»rsc  to  send  to  tlie  host,  but  the 
|ior*#-  wan  <«tollen  and  taken  away  by  the  re- 
liilU,  iirid  III:  f^annot  wrvtt.  ,  ^  ^ 

Sii  SuhMt  nhilur,       CjEO.  M'kenzie.  I.  P.  D. 

fuhn  DfMf,  sn^ant  to  the  Idrd  of  Bruu- 
biiiii  dvMfUv.oni'onni%Ui  DafidSpitlem  wn- 
•.i/i/zi   HiidliiMfloiwilwreitt. 

^''I^UrnbUur,       «E0.  M<«NZIE.  I.  P.D. 

f.Miif  t  M' '"''.  '^  ^>«s«*»nff™y » itt  ^vindication 
..I  1.1.1  iiiii'H «ii' «■  |ir«Hluf.td  ane  tesUficat,  under 
,|„.  b»iHl  "I    l»tt»">  '''^«*  Newark,  whereof  the 

|4,|iiil  IlillilW*'* 

I     |i5%lil  Lord  Newark,  doe  hereby  testifie 

!\  liHHi.ii  vuuiufiiif  to  the  nroclamaunn 
*  ;.  ..no  ittiidrvouzc  with  tfcerestofthe 
?»'*':    ;  .1      "  . vr...  »"d  he  having  told  nic  bis 

II.    IuUm    ♦«i»"  •••«■>'•    *'^***^*'  beuig  well 
"'  ;:;   :  !::  I!;:    «...!  H.'-  .^t  ««•  the gentTemen, 
\   ^1,,.,    „,„  .l.«i..iHM-birn,andaHowe   am 


horse  to  have  gott  them  restored,  cmua  smiifur, 
he  was  working  in  the  home  at  the  tyme. 

Sic  SubMcribitury       John  Neilsow. 

John  Neilson,  son  to  the  said  John  Neilioi^ 
above  designed,  depons  conformis  to  his  father 
and  that  the  laird  ofLargo  wentwith  achairged 
carrabin  eller  the  rebells  to  have  gott  back  n\§ 
horse. 

Sic  Subtcribiturf       John  Neilsow. 

Alexander  Derhum^  of  Duntarvie,  depoiu  hf 
knowes  the  laird  of  Largo's  horse  was  taka^i 
away  by  the  rebells. 

George  Scotf  of  Pitlochie,  bemg  swomey  d^ 
pons  that  the  voice  of  the  oountiy  was  thai 
Charles  Cowan  of  Corstonn's  horse  waB|ake|i 
by  tlie  rebells,  and  within  two  days  thereAer 
the  said  Charles  came  to  the  deponent  and  told 
him  one  of  his  tennents  hade  taken  the  said 
Charles  horM,  and  when  became  homeheoon- 
fest  that  bis  liorse  was  in  the  company  with 
the  rebells. 

Sic  Subscribiiur^       Geokob  Scott. 

John  TFi/Ziamirm,  servant  to  Pittonr,  d^bns 
he  knowes  Charles  Cowan  of  CouratDon'a 
horse  was  taken  awav  by  the  rdidls ;  be  can- 
not wreitt. 

Sic  Subicribilury    Geo.  M'kenzib.  I.  P.  D. 


I 


li».iii 


u 


George  Scott,  of  Pitb>cbie,  depons  that  he 
heard  Balcanqubill's  horse  was  taken  away,  and 
being  walking  in  the  tields  be  sawe  some  honea 
witli  the  rebells,  and  one  of  the  deponent's  ser- 
vants told  him  that  one  of  these  horses  ba» 
longed  to  Balcanquhill  as  he  thought 

Sic  Subscribitur,        George  Scott. 

The  said  John  Williamson  lykwayes  depons, 
that  the  common  report  of  the  oountrey  wi^ 
that  the  laird  of  Balcanquhiirs  horse  was  takea 
away  bytherebeUs. 

Sic  Subtcribiiur^     Geo.  M'kenzie,  I.  P.  D. 

John    Henryson,    in    Fordelgrein,   depona 
weymesof  Glenistoun  bade  a  man  and  luirat 
armed  at  the  host,  who  attendit  aU  the  tyme. 
5*c  SubicribUur,        J.  Hensersom. 

-4/€Tflrtflfer  Bantkin,'^  servant  to  the  laiid 
otL^wchat,  depons  conformis  to  John  He&. 
ryson.  **«w- 

Sic  Subscribitur,       Alexander  DaKskin.      . 
I  t^t^^  ^^7^^"^  ^'  Alexander  NainTS 

;;\;;;;,-7.p.H.  hi-  lady  ;js^^^^^^^  I  ^?S^wtt\tr  "^'  '^  '^"^  -^  ™« 

written,  wbertSfth'itiJ^^^  '»** 

Tlicaeare  testifidng  tbit  I  ke^ntlh*^..^ 
dcvouzo  at  Coltoun,  of  bL^^wSL^MT 
lufct,  mnanie  of Geoiie MoSTrfR^S- ''""• 
broiher-in-lawe,  wSTSrSf  C^'&'^ 
cneff.  bis  servants,  J^o;^^ 


.., ,  ^i,  Mui ilii-  '^••«-'''»**  day  Of  October. 

sl  SHhtiubitur,        Newark. 

s^Hunhttur.        Newark. 


Jf7]  fot  Akicncefram  the  King-$ 

TO&rohetl  Qitckrr  my  lord  Nevrtrk'i  GbtmnaniJ, 
iwd  rtlertvArti  under  the  eurle  uf  BulrarraM 
orminiaud,  and  i^uUiiued  in  llic  bast  tilt  it  vrus 
dislMiidit  by  order  ;  and  uU  tbat  in  oh«>dicn cc 
to  hisi)iAjt'siiij^8  l^ruclaiuation  fur  my  said  Tiru- 
tlivr-in-l&i»e.  Iii  t^nlitnohie  wliCMXHif^  1  have 
Jiibscjibil  tbir  presents  with  my  hand  «U  Aiicb- 
Icnytie,  tbis  twenlie  nynt  of  Se[ii€mber,  1679 
years,  liefof  ibir  Mritiiesses  Joba  MoncrieiT, 
nottar  iYubUct|i^reitter  hertK)f;  and  9^1  r.  James 
fiibbald,  icboolm  aster,  at  Auehlernitio. 

Stc  Snhfvribiturt        Jg,  MoNCRElFF. 
P^THrcK  Leni.ie^  (witnes.) 

Wt  Cot  in  enrlc  of  Bakarrat^  and  David 
lord  Naeark  attests  the  above  wreitlen  de- 
clftration  to  be  of  ?eritie,  as  witnessc  our  sul»- 
■criptinu  ut  Caupar  of  Vyii\  Ibc  second  day  of 
October  1679, 

Sit  Subicnbitur^     Dam; Alius,  Ncwwark, 

David  Lord  Newark  upon  oalb,  udberes  to 
Hnf  attustalion  s^yen  be  blni  in  Georg^e  Mnn- 
criedTof  Redic^a favours  that  tbe  aaiaeu  iabulb 
mid  veritie. 

Sic  SuhicriHiur^  >i£^wAiiK. 

Jtihn  Manvrifff  of  — — ■ — - —  depons  Atou- 
Ci  lie  seut  out  \\\%  bmther-in-lttWfi,  to 

tbt  ^  i  stwith  this  «Epi-ei4se  condition,  if  be 
^irer  not  nceepted  of  he  would  pro  binisclf,  cau$a 
$cientitt^  he  wast  frith  him,  stnd  heard  as  he  has 
disponed  t 

Sic  Suhicriyuuft  Jo.  Mo?icREtFr, 

Tkamtts  Ciichnitf  in  Auchlermougbty,  de- 

Che  know(!S  iti^iie  sent  out  bis  brother- in- 
to his  inujestie's  host  with  lUi*  «?xpresse 
condition,  that  if  he  wer  not  accepted  id',  he 
would  t|oe  liimt^elf  or  «end  bis  aoo,  and  kuowes 
lus  lady  was  ^ick  at  the  tyine. 

StcSubscrtbitur^        TnouAAGiLcnntwr, 

Tbe  Lords  ordaines  tbe  Assyse  to  inclose  and 
retume  ther  Verdict  upon  the  27lh  inatant,  and 
ordaines  nil  jlortics  to  attend. 

£7th  February  1680,— The  said  day  the 
persons  who  past  upon  the  absent  bmtars  from 
IbehOftio  FyH-shiref  returned  tber  VenJict  in 
mttaoee  of  tbe  sjuds  lords,  wbei-of  the  tenor 
lolWeii:  Edinburgh  25  Febniary  1&80.— 
The  Aatyse  fiodn  the  ly  b«U  proven,  us  alaa  tbe 
Mivse  be  one  voice  lie  the  m<»uth  of  ther  olmn- 
Mifor  Gcorve  Drununond,  tbiils  the  defenoc» 
for  Robert  Hamilton,  of  Kilbmchmont,  Jannes 
!       Lavvc,  of  Hui'moun,  Sir.  Alexander  Nairn,  of 

f       litldreirtoun, Lundy,  of  8tratherlie, 

aur  James  Sinclair,  of  KJniuiitl, Kinin- 

Ipond,  of  that  Ilk,  Diivid  Bcaloo  of  Bandoo, 

m  Jolm  Henrysoti,  of  Fonldl,  Robert  Baltbur, 

of  Dalbirno,  James  Melvil),  of  CaMiDfrray,  and 

ThomaR  Hay,  of  BolbmiAie,  pannalU,  contained 

t      in  the  tint  claoe^  pniven,  except  Beaton,  of 

I     Bamlttii^t  McMHs  or  his  n^ylTa  sicknea,  which 

I     |fc#  viyse  ih4$  noi  proveD,  bui  the  rest  of  th« 

I    tii4  Biilim  of  Budoii's  defiBooe  they   tiud 


5k  Su^ri^.f       Geo.  DMMJiOND,  Chat}. 


Host.  K  D.  15S0«  [SB 

The  Assyie  be  ot>c  vtiice,  be  tlic  mouf  h  of 
Georpe  Druramond,  thcr^''^ ^*      '■    '     '  ?. 

defences  for   AlexandtT  li 

Charles  Cowan,  of  Cor«lou»i,  ,  .^. .,. 

hiU»  of  that  Ilk,  Alexander  Nairn,  vi  , 

lieor;Te    Moncreilf,     of    Redie,     »tu:      _    .  A  , 

^Vt; yiues^  of  (tleuMouii ,  pannalis  coataitied  m^ 

ihe  second  class,  proven. 

Sic  Subicrib,,        Geo.  Drummo^d,  Chan. 

The  Assyse  all  in  one  roice,  be  tbe  mouth  oTj 
Georg^e   Drummond,    ther    Chanecllar,  tiudtf 

James  Yonn^,  of  Kirkloun,  and Mur- 1 

ray,  uf  Pitfocbic,  t^fuilty  of  ibcr  remaining,  and 
abydlng  frae  tbe  king^s  ho^^t  in  June  last. 

Sic  Subtcrib.,        Geo.  DtiuatMOND,  Cbao. 

EOer  oppinitkg  and  reading  of  the  wbilk  i 
verdict  of  Assyse,  The  lord>i  justice  gpnenil,! 
justice  clerk,  and  commissioner*  ^t  •*'* 
absolved  and  assulyed,  and  lie  il 
aolves  and  aFsolyiei*  the  haill  pi  ■  d 

in  the  first  clB5»se  from  the  hbell  and  dittii^l 
above  mentioned,  and  discbaire^^oi),  and  be  thir  1 
presents  dischanges  all  new  letters  or  ditt^iy  to  f 
Be  raised  or  taken  up  against  the  dd'^nderti  for  j 
tbe  cryme  above  s{»eelfit,  in  all  tyme  comind 
wherupon  they  and  tber  procurators  asked  ano^ 
took  instnimeuts* 

His  Mtijetties  AdxHtcat  produced  bis  ma- 
jesty's gracious  letter  direct  to  tlie  lords  of  hiftl 
most  honourable  privie  council,  ancnt  tbe  pu*l 
nishingf  of  the  absents  from,  antj  deserters  of  hitfl 
Itynes  host,  and  dcsyred  the  isaids  lords  might] 
proceed  con  forme  tberunto,  and  to  his  oiajeati*!^ 
other  vivacious  letter  direct  to  ther  lordship  i 
the  surne  date,  and  record  it  in  the  books  ol  Ad- 
journ hI,  upon  tbe  twentie  sext  day  of  November  J 
last :  followes  the  tenor  of  bis  majesliea  i 
letter  direct  to  bis  privie  councdl  : 

ClLABLES  R, 

Right  trustie  and  welbeloTod  cousio  and] 
cM>uncellor,  right  trustie  and  wel beloved  cousin 
and  counccHors,  right  trusty  and  welb«*lovciI  ] 
councellors,  and  trusty,  and  welbeloved  C4}uii< 
cellors,  We  greet  you  welL  Having  setn  and  I 
considered  your  letter  of  the  elivinth  in&iant  t9i 
tbej  duke  of  Laudctdale,  our  seoretarte,  oofi*{ 
ceruing  those  who  did  not  assist  us  in  actp 
preasiag  the  late  rebellion,  and  those  who  de 
serted  our  host  at  that  tyme:  we  am  fuUiiii 
oonvioced  that  it  would  prove  a  great  discou«^  | 
ragement  to  our  faith  full  subjects,  who,  in  tb«  j 
discharge  of  ther  duty,  hare  bein  at  a  grcali 
deall  of  expense,  trouble  and  hazard  in  that  cJt-J 
pedition,  if  they  should  not  see  some  suita 
punishment  inflicted  upon  those  who  (vviti 
any  reasonable  excuse)  did  not  come  to  our  i 
aistance  at  that  tvme^  and  upon  those  who  ef\ 
coming  to  our  uosi,  deserted  the  snnic  ; 
therefore  we  *loe  readlic  approve  the  rrsolu 
you  have  taken^  to  fyne  the  most  guihy,  not^ 
above  two  years  of  ther  valued  rent,  \>hitst 
others  who  aro  lease  giiiUy  are  to  be  fyned  al  1 
least  in  tbe  fourth  part  of  a  yoar*Byiklu«dfenl|j 
which  we  take  to  be  so  mod^nl  (ooniiderin^  i 
Uow«  d\%ti!i3AXV  NSaa  igwrtaa^ll  ^^s«^  ^=ry(a«.'^&M^F^ 


\ 


4 


.-?)! 


CIIARLF.S  IL      PrBTMimgn  strskui  ihs  Ffeakire  Btritan,       [40 


Ivivo  Ivm  if  ^,ft»\  •>!'  iiiH  .iilinit  (f.io«ln#»  Hai!*»  .Tit 
lif^v'nu-.l  ilirni  J  ihnr  hm  yan  <jiv  tp:-#-.  -.rAJIy  It 
may  r.iiln-.'  '\u:  tlinuiflit  i  'vnrnin*;  Jh^n  %  pii- 
iiiqlitn^nt  !or  •*  iln^  •.*'*II  know»  Miat  <iu\%%  of- 
|i«Mi!irt  ii:iv..  ffirriifrti'^  h^t\  p'iniHlK:rl  Sj  for- 
liiilinr  'ii'.-'iw^tifins  ^rnl  Imnmhnn^titR  :  an«1 
<n  -.vt:  iiifl  iif,-t  i.»';kr1ly  i3iff.vk*-\\.  Oiv^n  at  0«ii' 
r  .«ir»  :it  \'.  :iit;i;iiL  th--  l/Hh  d:iy  of  .\o7«*.mh*-r, 

ii);i|ir<:rif'<  ro'iiirrif.d.  L«<;r«  Eft  DALE..        ! 

^■'•mmuiiMifr*  of  Jjislirlarv,  liAvinif  fin.^i- 
•IfTfil  I  In-  IvIhII  an  •  v^Tliri  f»f  sttsjv*  aViVf:  ; 
^fftiiitn  I'l-^itirr  ntl.il  hw  Tri:i'j'«*firH  (frimo-n 
Irt*/  r^j.  *  .J  iid^i.';^  1,;;%  \'',y  ^!^  wiil  siiirl  ^;':.-k  ,.-i'. 
Sfi^rit  liK-  •i'liiisitrnr'nU  to  h»rr  i^^iir.U•/l  uj^jn  ihi; 
.••,4*  iiU-  fioiM,  arwl  fi'-<#:rt<  ■•'«;  of  ii;A  hvn*^  h^o.r. 
'Irify  J>r  fl,#;  rnr»iitli  of  Jam#^5l  /ff^rirvaor., 
Tty.irjT  of  r  .in't,  r!pr^m^fl  anil  jiirf^H  Ihfc  aawJ 
.riiii*-K  Voij  ./,  'if  Kirktonn,  to  b*;  in  anfr  uii- 
Uwv  nTj\  ui.tt'.rciHmt'wtnt'Tirif.  thoii«and  ftijfht . 

liM'.'Irctli    niil    v:,*r.li':    (i<itinfU  Scotts,    i 

lViiirr.iv,  of  |'i*ififlii",  iij  tli.:  ^oiimf^  of  KTCQ  ■ 
liiiiitlii'ilifi  (I'Miri'li  Scot^,  ^it:\'iinf!f:r  fliirham,  j 
»»f  f  *'ir:r'>,  !'■  lii*-  v»'iir»#:  lit  arK:  tiioiiwinr)  Hi^ht  j 

f  :iii'|ii  il, '.{  :!i;it  lik,  in  tli'-  soiimfi  of  fyve  liiin- 
«Iii«S  |»'ini.i!q  hs^iJltH,  AU  ?aii'if;r  .Nairnfr,  of 
Sjirnf/irfl,  in  iho.  mim  of  tito  hiiri'!r»-t!i  nvntift 
f'..:r  \t<,uut\A  Un  filiillin^  Sf:otU,  f«f:orgi»  5lon- 
«r'ifr,  of  fff.'i.c,  in  Uif;  4<r>n!ri«s  of  lliri-e  hun- 
«li»'Hi  poiiriU  S*oi|«:,  ;infl  JanifH  Wryrnr*,  of 
*il<'.ii<  .Jop;-,  in  ttir-^.»fimft  of  zn",  hiinrinrtli 
«' V.  nil  J;*  w-  iioiinfl  Switu,  and  rirdaiiMrfl  th«:rn 
lo  Iff  .If. J  Inn. I  for  p.ijrnn<rnt  of  tlio  frirsai'lH 
«./,iiin*  4  fii  Iiii.  rnAjf-AtU''!!  r:a((}i  l:f#'jKT  f"'*r  |j2<< 
ii>ii««8  ii*#-,  ;it  fhf  tfrm#!  of  l/i'i.'ir^  nixt,  and 
I'l  hi 'I  f»ii  ir»Ti  Jor  |»rr4f;Tiriri^  Uj':r  |if;rson<i, 
Im  I'll*  I  «f  I'lr-l-;  rfnttiu\HH%f,wrH  of  hi^  HuijfiSUtm 
ill'  ...«*...-,  p.<-  I;i  I  f-'riflay  of  .liry  ii.-rt,  iin«J':r 
r-  ^..tii,<  111-  .(/.Ii%(|y  n^ifiVfr  ffir-hiioiifii,  fifiil  or- 
fl  II,'  ••  'In  Ml  ill  If*'  f  :ii  \«;f|  |/|  |i;i«/»|i,  rn«:i':  tO  TV.- 

II.  nil  t  li  tr.i  y  Ktilixr  r^li«:  tlif  («#kirt  Uiri'l,  nnd  fiiirl 
l|i#- »,'iii  rli«-,  wliiJ'Ii    wHh  |iroiiiirir-i'<l  ^ir  flooin. 
'Ill'   ...,.il  i|.iv   .Ii»!ni  .Miuniy,  of  l'i\\ttf.hif^\ttr- 
I": 
III. 


Th#t  >v)nkA  of  A^ijimnni  tor  this 
rnntain  fc>*r.r,rri<  rf  th^  pnicewliiia^  airxiiHK 
«e»*»rai  other  iwntft*^,  whn  w«rr  broaaht  8» 
trjii  on  th«  l.ki»  iadictaiMifs.  Bat 
th«^m  an.l  i^t^  c»m  h#r«  mpmiai  there 
not  ipp«^r  lA  be  tit!er#nce  fmncienr  to 
the  ia.serti«m  of  them  either  interaaag;  or 
struct*  ve. 


Fonr.tainh.id'f  ucTiant^  aniler  dates  Feih  3S 
an<l  2.:,  I'^i-j  '1  i>GS.oas,  o7j  of  this  pn>- 
cr:H.ir»,  ia  a.«  UAloifB : 

*<  \r  the  Cnnrinal  Court  the  ahaents  (mm 
the  kiotr'i  host  in  June  txst,  to  the  oamher  of 
.'^.j  (yentlrnvn  of  Fife,  are  now  paooeUeA. 
N^rfa,  thU  d  oot  the  thifi  part  of  these  »bo 
'•vere  a^l■ent  in  tiie  shire  of  ¥\i^^  ami  there  m 
aootiier  indircment  raiseti  a^iinst  th«  rest. 

*' Thf:y  tint  propooefi  ^eoeral  deteneei: 
and  aHeiL'^fj.  that  tbe\  having  put  oat  their 
nulUia,  thfy  w err  not  nlAar^  to  attPOil  in  per- 
ViH,  t!.*r  p^rLaiTient  havia;;  consei^tefl  to  the 
rrni.tia  i'l  [.lace  of  that  ienizwia.  This  was 
ir;t  ^:.a.xi<>"!.  .^.  Aitedgfed,  the  procamatioB 
r:a!!in'/  t-^riv*  out  vvas  oot  published  at  the 
liiindrMli  !vfrif'rhr('«';i'.»..iiUHr.ol:»i4,  iMvid  flal-  j  HH'^i.f^k  tp' .kfA-f.r^'A^es,  as  it  expre«Iy  bean 

ftr.d  ai*r  nnis.  Answered,  Their  privaie  know- 
le*!sy#^  .inr.f.:!'-''  ir.at  defect. 

'-  Their  p'^rticuiar  defences  (banded  npott 
flp«:ciaLtiHi,  wf:r»f,  1.  That  some  weie  »tck. 
liut  the  I^.rds  toiind  tesiificates  from  miai»- 
ters,  ph\  sician^,  officers  of  the  army,  he.  not 
sufficient,  without  witnesses  were  adduced  bjr 
an  excnlpatinn,  for  *  testihus  noo  testimoniis 

*  est  credendum,'  See  a  pleasant  Mnry  m 
Philip  C.ominieiw*  how  Lewis  llih  of  Fraoee 
fined  <;ome  {j^entlemen  for  fl\  in^f  from  bis  boat 
acr^inst  tli^  duke  of  Bur^indy,  and  tbej 
ohl-refi  to  prove  others  were  spared,  who  fled 
0  miles  fnrtljpr  off  thin  they  did. — ^Tbougb 
pli \  sir-i;ui9  prMctiid  a  privile^  not  to  testify 
iilKiii  soul  aud  conscitnci-,  j>t  the  justices  de- 
cliiiid,  tlir-y  w.iild  reject  all  tesliticatcs  tha| 
iviinU'd  it.  '2.  Ir  ivas  aiir-di^cd  for  some,  that 
th^y  Heio  past  the  kfre  oi'  oO.     This  was  found 

I   lyiiif^  r.iljfdlii  li;iv<r  #:oifi|K:ipd  Mirir  I  rtrh-vant,  they  provin;^  it  instantly,  proTidiiiff 

'     •    *'       ' '  - ' ■  '^  '^ -  ''■'   they  had  sent  out  their  best  horses,  and  their 

liest  men  well  appointe<l.  3.  Some  pretended 
they  were  ofhcers  of  the  iniiitia,  and  went  out 
With  it,  or  that  they  had  lamts  in  another  sbirOy 
and  nnswcretl  tliere.  These  were  found  rd»i 
vant.  4.  IJay  of  Unlkousie  founded  bisde^ 
fence  on  a  nass  to  return  fi-om  tlie  marquis  of 
Montrose,  fiis  su]ierior  ofHccr:  Answered,  He 
not  lN;in£(  in  the  kiii£;'s  i^iiard,  Montrose  wa« 
not  his  officer.  Sdn.  Commanders  have  no 
|N)WfT  to  tr'tvK  tlicni  liciMiC4j  to  desert,  else  the 
iialfof  tlif!  army  iiii^lit  be  dismissed.  Replied, 
Inio,  dtrscrtiiiGT  is  not  libelled,  but  only  not 
coining.  2do,  (irotius  *  de  jure  belli  et  pmdif 
ifi  very  clear  that  other  officers  besides  the  ge* 
niTal  may  i^ive  *  salviini  cunductum  de  tb* 

•  drimdo,^aiid  if  the  granter  hare  ezoeaded  haH 
fluty,  then  blame  him.    Daplied,  deserting  i« 


«  fin 


p.- 
I'" 

Im  ti 
In 


I'll 'Is  lilt  I  diiy  iiiid  pl:i<U',  in  the  hour  of 
'  !•»  |i;ii-i-  In  »rd  iind  m'iii  diKiiri  and  M-nt- 
,  (If  >ii'iiiii<  III  »if»inst  liiiri  for  Lis  rinnam- 
.iit'l  .il./dirif/  frui*  bin  iiiap-^tifH  host  and 
II  >»,ii>i|  III,  iiiid  I'l  liAVf  (granted  bond  fur 
il' til  III  !.:-.  iihliiuc,  ;ind  ifiiio'l  f'ai:tioti  (or 
'  niiir^  III  III  •  pi  1  v'lii  lo  l|uil  #-ni'rl  f:ontortiif 
•  ■  >.'  i.h  ill  r  liiuliill  iiffic  r>f  flfiy  hidilrn,  and 
ii"l    I  nil  riiM'l    iitir   appfiiiind.      Tlitr  ionls 


|iivi|.  ■  i.ii,r,,|,  jii.iir*-  fU'ik  and  roininiKfi- 
«.iMiiii  Mil  )iM-.l|i-i;n-|i-,  tl»M-<-f«ir  III-  llir  riioiitli  of 
.linm  .  Il»  I  t\  .''11,  iiiiiriT 'if  rofirl,  ili'miicil  iind 
iii||iii|.ri't  ilii^.iid  .I'lliii  \(iirrii\  of  |*iil(ichi«% 
l»i  III  oiil!;iiii-  mid  tii'/ilitr  fiai'  liiM  iiiH|fHtieH 
lii\«i -I,  iiml  In  III-  pull  to  ijif  liorni' jind  all  his 
iii'ii.ilili  iriiriili.  iiiid  (M'lir  III  III*  ifii  lii>nl  nnil  iti- 
lii<iii|rhl  III  mil  i.f»Vf  ii|i|rtii>  lord's  lifu*,  for  bis 
liv<  f'oniiiiipi  Iind  dpudN-du'iifr,  which  was 
|iiiininiiiri-d  liir  duoin. 


*  So  printed  in  the  book. 


fer  Aiancefnm  thi  King's  Hmt* 


A.  D.  i6m. 


c« 


lUy  and  *  per  equipoUcns*  Ubelfcd, 
in  •»  l&r  as  tli«  4tll  n«i  v^  >  M24,  tbuuded 
Upon,    UMtimiiuls  the  oe  the  king 

aigviost reMleri ;  wlu*  '  i  _.trter» do  not : 
Mc  act  llO,  p&rl.  142^J.  Silo,  Eslo  inf«?rif>r 
officers  may  (^tii  turJoof»afid  maBies  *  lem- 

*  norc  padsV  y^  ^^  '  in  hello  ^tin^oati/  and 
Vf  nen  tbe  army  f^  *tnndin|f  *  in  procinciu  ;*  tor 
attUaniteir  m  iheir  p>wer  to  dia- 
mkaaU.  fu  lur  Aytoitot  Inchdaruic, 
that  be  Has  *  m  reueati  luctn/  his  only  son 
lta?tng  l>i'i-n  killeil  some  fifvr  days  before,  upon 
m  miattke  as  if  be  bad  been  one  of  tbe  arch* 
iMsbopor^t.  Andrew^a  iimfd««nf  ivhicb  he 
Wta  not ;  and  Hm  Jus  No? el),  say^,  *  per  ooTent 
^  dkfl  non  iuc^uirtiE^ur  qui  proakimi  funus  dux- 
*jaiit.*  6.  8«ifne  pfetcntkul  that  their  wives 
were  then  lyin^r  dang^ei-ously  sicW,  or  near  the 
lime  of  llierr  delivery  ;  or  that  tbeir  wives  op- 

fiosed  ami  c«jntradicte<i  their  ^ing".  This  in 
mw  m  not  relevout.  7.  It  was  alledged  thr 
oiban^  that  thptr  houses,  their  horses  and  their 
arms  were  plunderetl,  and  »o  they  neither 
OOuid,  niii  were  obliged  in  taw  to  go  on  foot  ; 
■lid  they  routd  not  at  that  time  get  other  horses 
to  bi«y,  they  beintf  all  pirked  tjp, — Becau«»e 
there  was  a  prei>umptioii  ot*  simulation  in  thi^ 
robbing,  that  it  was  caused  to  be  done  by 
themselves,  or  at  least  by  tht?ir  wives  to  keep 
tbem  ai  home  ;  iberefofe  the  declaration  wiij« 
offeri'l  to  them,  uh  a  testifrcatton  of  their 
loyalty  if  they  to»»k  it :  but  sundry  of  them  de- 
chned  it,  and  otTercd  to  purire  tbemsetvps  upoti 
imtbf  thai  there  was  no  collusion.  Yeu,  some 
apprehended  that  iheir  def«?r>ce  of  ^ickne^s  at 
anrh  a  lime  ««  thin  imt^til  he  niinnliite.  8. 
fskniic  denied  thnt  they  wi-re  bpriton*,  and  so 
wer*-  t\nt  ohlii^rd  to  nttend  with  the  gentry. 
T^^  •   craved  they  miglit then  rfnount'c 

Hi  J  -^sje  to  the   kin*;,  *  ad  reinutien- 

*  tintu,  \i>svM'red,  they  Here  not  ohh^eil. 
Replieil,  Where  i.ne  is  'pijr»ned  ibr  taxation, 

denies  he  is  ain   heritor,  then  the  lords  of 
ion   johli^  him    to  renoiiore.     *),    !S<jme 
riifo-i  tk,...   *<^*'n*  only  upparetit  heirn,  sinil 
l>t  n*  in  ]M)ssession  of  nothing, 

huL  _  ,        iit«^.     Answered,  the  right  of 

apparency  lorleiii*  hy  the  6'>th  act  of  purl. 
154 (^  and  m  tht'  ktoi^  has  ri|;ht  to  wh»t  iliey 
miKbt  «*ot'eh!t*d  u*.  to.  Alledifrd  for  some, 
they  were  only  wiidsett^irs,  or  only  pos'»t*satHl 

*  jure  mariti,*  or  by  the  conrtcsie  ol  Scotland, 
Vhere  thev  had  married  an  hcretrix  ;  and  fio 
were  not  Ueritarii.  Answered,  Since  the  law 
was  so  courteous  us  to  ^i\&  them  thi^  Itti^rent- 
courtPMe*  tbfV  ouf^tit  to  ite  a*  discreet  and 
thankfol  an  to  det«Mid  the  law^  atid  their  own 
j.,j,..  i ...     ...I  ..  r  ■'  ^.f,,.  ,yas  'jure  feudali  et 

*  (I  dliii  pro  tempore  et  ud 

*  u,i.,4..- :  ^.^  .,.i.  liable  to  all  i»«frvices. — 

Qnirr.  It  a  blench  vjiBf^ul  n'ho  pays  his  ^  red> 
^denilopro  omni  alio  onere,*  may  plead  ej£- 
cmiHion  from  boats  and  raids  ;  certainly  he 
cannot.  11.  It  wan  alled^ed  for  some,  that 
tliey  had  no  itdieritance  but  some  crofts  and 
burrow  roods,  within  100/.  Scou  of  yearly  rent, 
lod  so  w«r«  not  bound  to  go  out  iii|)ertoa  ultb 


the  heriioiir»  their  rent  not  being  M%  to  sit^lsiit 
ibem  as  hors«ro«n.-^Tboii^h  they  should  go 
and  pmiteel  their  own  propettf ,  yet  this  ex-' 
ceptton  seencia  very  rele^at*     1  hea  rd  t  h  e  lorita 
assfiilzied   them    nhoss  bmfage  was  withiii^ 
300  merks  yearly,  as  not  hein^  able  to  keep  i 
horse  on  tliat  rent :  but  what  if  they  have  m\ 
good  fortune  aliunde  in  money  P  Some  malc^  1 
100/.  Scots  of  valued  rent  the  rtile  ;  and  if  they 
have  under  that,  they  are  not  obliged  to  atlenil  ' 
hosts  and  raids.     The  old  crimtnal  iiiljourrial  ^ 
books  mtrntion  sundry  excuses  fur  sitch  »s  ab<  ^ 
sented  theraselres  from  hosts  and  raids.    Anent 
the  French  ban  and  Arritfr-ban,  see  Craigf  p. 
213.     12.  8ome  alled^ed  they  were  merehanta 
and   burgevses    within   a  bun^h    royal,    and 
watched  there.     Answered,    Since  they  i»«r«<. 
Iiind%»itrd  heritors,  tht*v  ought  cither  '  rtfutai^ 
*■  feuduni,*    or  else  serve    the   kiug  for  theif 
land.     13,  It  was  contended  i\it  ai>me,  ibat  it 
wau    *  res   hactenus  judicata/    for    they  had 
been  summoned  to  the  circuit  at  Couper  antl^ 
t  be  re  b  ai  I  ^H  absol  *  i  tors,     A  mw  e  refl ,  11i  e  d  let 
there  was  only  deserteil,  and  that  did  not  huider 
raising  of  new  letters.     Replit^i,  It  was  more  I 
than  .1   '  ,  for  it  proc^eeded  upon  trial  o^l 

the  It  their  excuse  ;  and  beinj^  found  , 

just  atii  ^ir'<\<  u,  it  was  admitteil,  and  (lie^y  as-  , 
soilzied,  14.  Allt<lj^etl  for  sume  that  were 
ahscrtt  from  the  bar,  that  they  were  lyinjBT  sick, 
in  thflt  they  were  within  16  years  of  ag^e  j  for 
the  law  condeftoends  npou  nfi  heritors  bctvi  rca 
J  i>  and  60  I  tait  these  were  tt*pelle<l  as  not  in* 
<.Uinf!v  v«n-irit'<t.  riuil  they  were  fiiiod*  15,' 
I ,  <Scc.  alleilged,  that  Ihey 
\  t  loyaltv,but  wei^yuaMe 

totra^d  oit  hor»eL>iLck  for  ttie  gout,  gravel, 
corpnleucy,  '^cc.  but  that  they  hftd  sent  one 
more  »umcitnt  than  themselves.  Answereif^ 
Their  serving  •  |K*r  sulMiUtutuur  did  not  ex- 
oner  ;  which  nee  debated  hy  CrHig',  dia^,  1^ 
lib.  3.  10*  F<ir  Lindsay  of  Uonbill  it  was^al- 
Mged,  That,  hy  a  c<mimand  of  ]»riry  council, 
he  was  ordered  to  atteud  them  and  tlu  ir  diets,  , 
at  the  same  ver^'  time  that  the  heritoi^  w<<re 
failed  out.  Answered,  *  Posteriora  deroytuit 
'  prioribuii/  and  the  proclamation  calling  tbe 
heritors  out  wos  after  that  act  of  privy  council 
anent  him  ;  ami  he  shtiuld  have  olieyeil  the 
last.  Kenlietl,  the  proclamation  u  as  only  ge- 
neral, their  order  for  hi*  ap^»e»rdnce,  under  the 
p^in  of  lOtOOO  merlcM,  (Hhich  was  uncertaia 
when  4h**y  nnifht  call  for  him,)  was  special^ 
nnd  *  in  toto  juie  ^eneri  per   speciem  dero-  % 

*  gatur.* — Besnh*«the  foresaid  nraark-*,  having 
gi*t  a  summarv  ahhreviule  of  the  derence*^  and 
debalei  with  ttie  atterlocutors  tollou ini*'  there* 
u]>on,  as  they  are  recorded  in  tl»e  Criiuma)  A«l- 
journul  bookH,  1  thoinf  hi  tit  also  to  insert  them 

*  ex  sujierabundanti;r  here,  Tho  Ist  general 
defence  i«,  that  the  uh  set,  l*t  pari,  kingf 
James  1,  founded  od,  anf  nt  the  ret  using  to  en- 
force the  king  agiilist  notour  rebels^  must  be 
co(i<^rucd  and  undento^^  only  ot  rebela^  either 
convict  or  declared  tngitive  :  and  the  2Mh  act, 
9nd  park  J.  9,  relates  only  to  weai^on-shaw- 
tng,    Sdo,  Th«t  the  procliiitatiOQ  wu  not  iiiti* 


43] 


S2  CHARLES  IL      Proeudingi  Bgahui  tkg  BfeMre  Ueriion.      [44 


nate  to  the  heritons  and  lieges,  at  the  market- 
cniss  of  the  head  burif  b  of  the  shire  of  Fife. 
3tio,  That  the  foresaid  okl  acts  were  made 
when  the  king  had  neither  standinci:  forces  nor 
militia  ;  but  now  having  both,  the  subjects 
ought  to  be  exonered,  and  the  said  acts  not  be 
fouuiled  upon.  4to,  The  king  has  indemnified 
several  crimes,  except  those  who  did- not  assist 
bis  host*  but  they  who  sent  out  their  servants 
and  horses  did  assist,  and  so  are  pardoned,  and 
cannot  be  pursued.  5to,  They  founded  on  a 
letter,  alledged  written  by  the  chancellor,  in 
name  of  the  Secret  Council,  allowing  such 
heritors  as  were  valetudinary,  wanted  norses, 
or  had  any  other  reasonable  excuse,  to  stay  at 
home  and  guard  the  country. — ^The  first  4  ge- 
neral defences  were  all  repelled. 

«'  Then  they  came  to  the  special  defences ; 
and  it  was  alled^ed  for 

«  Boussie,--^That  he  attended  the  host  with 
servants  and  horses,  well  armed ;  but  being 
valetudinary,  he  procured  a  pass  and  licence  to 
return  home,  and  Udi  his  horses  and  his  servants 
in  his  miyesty's  service. 

*«  Hamilton  of  Kilbraclimont,— That  his 
liorses  were  robbed  from  him  by  the  rebels,  and 
his  servants  were  sick ;  yet  he  furnished  him- 
self with  horses,  and  followed  the  Fife  heritors 
to  have  served  the  king,  but  they  were  return- 
ing after  the  victory ;  and  he  offered  to  take 
the  declaration. 

<<  Law  of  Brunton,— That  he  was  sick  and 
bed-fast  durin|^  ail  that  time. 

**  Nairn  ot  Littleftiertown's  defence  was 
sickness,  and  that  all  his  estate  was  liferented 
by  his  mother. 

<«  Lundy  of  Stratharlie's,— That  his  horses 
were  robmsd  by  the  rebels,  and  that  he  was 
content  to  take  the  declaration. 

**  Sir  James  Sinclair,  Kinninmond,  and  Bal 
birny's  defences  were  sickuess  all  the  time  of 
the  liost. 

*^  Beaton  of  Bandon, — his  laily's  dangerous 
sickuess,  his  sending  his  servants  and  horses 
to  the  army,  and  his  taking  the  declaration. 

<*  Melvifi  of  Cassin^ay's, — a  licence  from 
the  captain  to  stay  at  home,  his  lady  being  sick, 
and  he  wanting  horses. 

*«  Durham  of  Largo,— his  horses  were  rob- 
bed by  the  rebels,  and  be  offered  to  rescue  them 
by  force,  or  to  redeem  tliem  with  money,  but 
could  not  have  them.  He  offered  to  give  his 
oath  that  this  was  not  collusion ;  but  refused 
to  take  the  declaration. 

**  Cowan  of  Corstone,-^his  horses  were 
taken  away  ;  he  is  no  heritor,  but  only  pos- 
sessor and  factor  of  an  estate  for  his  own  pay- 
ment, and  the  payment  of  other  creditors : 
But  he  refused  the  declaration. 

<(  Balcaiiquhall,  of  that  ilk,»Thathis  horses 
were  robbed ;  but  shunned  to  take  the  dedara- 
tion  for  fear  of  disquiet  from  bis  wife. 

«  Nairn  of  Sandfurd, — ^That  he  sent  his  ser- 
vants and  horses ;  and  being  a  captain  of  foot, 
he  endeavoured  to  cooveen  nis  oompany,  but 
none  coming  save  ten,  his  colood  sdjomed  them 
to  aaoiber  compwy 


cooveen  lus  company,  but 
1,  his  colood  adjomed  them 
$  and  so  his  boiwo  bring 


^one  before,  he  oould  not  get  himself  timeoudj 
tomished  with  others :  He  rehised  the  ckcfai- 
ration. 

«'  Moncrieff  of  Readie,— That  his  ladv  being 
sick,  he  sent  an  expert  soldier  with  his  novsas, 
who  were  accejited  of,  and  he  had  offered  to  ffo 
himself  if  they  had  not  been  received  ;  hoi  ho 
refused  the  d^laration. 

**  Wcmyss  of  Glcnniston's  defence  is  tfasr 
same  with  Sandfurd  *s. 

*'  Young  of  Kirkton, — his  lady's  dangerot» 
sickness,  and  bitter  curses  if  he  should  leave 
her ;  and  the  ap|iearance  of  abortioB  upon  his 
offering  to  go  from  her:  But  he  refused  the 
dedaratian. 

<*  Murray  of  Pitlochie, — ^That  he  bruiks  his 
little  estate  by  the  courtesy  of  Scotland,  and 
the  heir  is  on  life,  &c. 

"  Muirhead  of  Linbouse, — That  he  wao 
within  14,  and  so  pupil,  aud  he  coukl  not  gjo^ 
not  being  fencible :  vet  some  thought  in  stncft 
law  his  tutors  should  have  sent  out  a  man  for 
the  land,  even  as  onethat  is  past  60  should  do." 

Then  he  gives  abstracts  of  interlocutors. 

*^  Largo,*  Corsteu  and  Bakanquhall  wer* 
unlawed  in  one  year's  valued  rent  Sandftud^ 
Glenniston,  and  Ueadie,  were  amerciate  in  half 
a  year's  valued  rent. — ^The  diet  was  deserted 
as  ta  Holbom  of  Menstrie,  and  Gideon  Murray 
of  Pitkierie,  and  others,  it  appearing  that  ther 
were  past  the  age  of  60.  So  thm  is  shnsit 
room  left  for  that  question,  whether  annus  60 
inchoaiui  (as  heing^'in  materia  favorabili)  will 
excuse,  or  if  they  must  be  60  compleat.  The 
declaration  was  offered  to  none  whose  defence 
was  sickness,  or  who  had  any  other  defenoo 
that  put  them  beyond  a  possibility  of  aUendiog. 

**  I  heard  where  there  was  a  liferent  and  a 
fiar,  that  the  (iar  was  found  liable  to  attend  the 
king's  hos^  and  be  at  the  expence  of  sendioflr 
men ;  yet  it  would  seem  mucn  more  equitable 
that  the  Uferenter  who  posseses  should  be  liable 
for  tliir  onera  fundi  realia^  than  the  fiar  { 
*  Onus  temporariae  indictionis  ad  fmctuarian 
Vpertinet.  1.  28  D.  de  usu  et  usufir.  lesatot^ 
For  it  is  a  real  burden,  and  Uferenter*  shouU 
bear  it.  See  Nov.  1673,  f.  228.  For  Physician^ 
vide  <  Mattheeus  de  afflictis  dccis.  Neapolitan* 
<  41 ;  tot.  tit.  Cod.  de  professor.  etmedicM.' 
The  lords  were  inclined  to  think  any  eminent 
physicians  wore  exempted  as  to  personal  at- 
tendance, but  these  who  were  sahiriat  to  attend 
the  army;  only  they  should  have  sent" 

He  has  also  another  entry  respectingjprose- 
cution  of  persons  for  absence  from  the  Kinff'd 
Host:  • 

<<  March  6, 1680.  At  the  Criminal  Conrti 
some  heritors  of  the  three  Lothians  were  pan* 
neled  for  absence  from  the  kinff's  host.  Jamoe 
Ellies  of  Soothside,  Durham  of  Duntarvie»  and 
many  others  were  fined,  some  in  1000  merksi 
some  in  300  merits,  some  in  more,  some  in' 
less,  according  to  their  valued  rent;  ud  the 
loids  proceeded  with  modeaietion  enooglu 

«<Iallr.WiiliMnCaiM|y't< 


tS]      PrccttdingBagaimtikiCardMtt^fEarltit&m.      A/D.  iSfid. 


ri8 


ofCowburu,  tl  -  :  ue  of  his  bdog  a  mem- 
ber of  die  co  istu;e  was  pro|»uDe(l»  to 
caUKin  liiin  Irum  personal  uttiniaiitice  at  ihe 
kiog^t  host,  am)  wan  repelled,  as  I  hear ;  btil 
tt  wm  neiUiiiir  hilly  debate,  nor  the  acts  in  tlieir 
immn  shown ;  and  therefore  tlie  ctiTnltiiU 
lords  Gontioued  the  diet  against  Mr.  Thomas 
LearmoQt,  Mr,  James  Hunter,  and  the  other 
ftdvocatea  who  were  convaened  far  thdr  ah* 
•cnc«f)  and  had  gt)t  iDdictments  and  citaboni 
for  that  dTecl,  and  they  forbore  to  insist  agpainst 
tbeiri.  It  may  be  alledged  for  advocates,  that 
thev  are  not  obliged  to  attend  boats  and  raids, 
anci  a  man  in  arms  for  them  ;  and  ought  not 
lo  be  pursued  for  ahispnce  therefrom:  Imo, 
ll«ettiae  the  iU^man  law  exeems  and  pririlegcs 
them  ^ah  ^minibus  tunctionibns  proviocialihui,' 
II.  dp  ac  6.  C. «  de  advocat.*  diT.  jud.  el  tot.  tit. 


it  re  1 J  Lid  MIC  I 


<fe«ar«  et  tMdkk  %  imino  tk  ffioo* 
:  oth(»tVed  there  ftAfvna.    %^  llirf  ^ 
by  an  GxproHittotof  Bed«runl  muM 
by  the  duke  of  Chattidh«mit  governor  m  13^4 
3tio.  In  June  1a«t  the  Lords  tat  alt  the  ttous  of  j 
the  raid  and  campaign,  and  ao  odi^neales  etmM,  j 
not  warrantably  desert  their  ohenta  vi^un  qqo*  j 
tmry  to  their  oatli  de  Jhielit  nod  of  atlendnifp  S 
the   Lords*    4to.    By   aote  of  aecrst  cofum*^ 
then  made,  the  college  of  justice  were  fuKd  * 
mto  a  cotnpany,  lo  help  to  i^ard  the  town  of^ 
Ediuburgh,   and  they  chused  their  captain, 
lieolenaot,  and  other  officers,  and  got  arms 
from  the  castle,  and  marched,  and  «lrew  up, 
and  usefl  ditcipUne*     Nota,  This  makea  not 
agKinst  the  colle^ne  of  justice,  for  Mr.  William 
Cwsaly  IS  deprived  ftom  being  a  writer  to  lh% 
sigTkei.*** 


826-  Proceedings  against  the  Gordoxs,  of  Earlestoun,*  and  others^ 
for  Treason:  3^  Cha^rles  IL  A.  n*   16S0.     [Now  first  printed  | 
from  the  Records  of  Justiciary  in  Scotland.] 


CoftiA  Jv9ncuAtMt  8.  D*  N.  Re^s  tenta  in 
prelorio  burgi  de  Edinburgfi  decimo  oc- 
tavo die  meosis  Fcbruarii,  1680,  per  ho- 
I  liorobilcs  viroidorainosGeorgiiim  M*kcn- 
^  zie  de  Tarbel  Josticiarium  Gencralero, 
Thomam  WaUacc  de  Cratgi*,  Justiciarie 
Clcriciini^  Uobcriorn  Nairn  de  Strathiird, 
I>av'iilem  Balfour  de  Forret,  Darldem 
Falconer  de  Newtoun  et  Rogernm  Ilo^e 
de  Hurcarss,  coinmiaBionarioa  Juaticiariie 
dictii  H.  D,  N.  Regis. 

Curia  legitlime  offinnata* 

The  isaW  day  anent  our  soveraigne  lord*? 
criminal  letters  raised,  used  and  c^ecut  at  the 
hiatance  of  sir  George  M'kcnzie,  of  Rosehaurh, 
^or  soveraigne  lord's  adrocat  for  his  hyiKS  m- 

•  8et*  in  this  Collection,  the  Introduction  to 
the  Trials  for  the  Ryehou^e  Plot,  inserted  in 
tol,  9,  paiticularl     '  t^t  8e<j.     8ee,  aluo, 

as  to  the  torture  '  i  im  and  some  other 

partirubrs,  vol.  (j,  pp.  i^'ii,  ct  tetj»  and  of  the 
10th  volmne,  pp.  751*  et  acq* 

It  appears  fi-om  Wodrow,  iTtat  Oordou,  of 
^udr^itouM,  haTing^l>een,  together  with  several 
other  per^iona,  cited  to  answer  for  being  pre- 
sent at  Houte  and  Field  CoiiTenticlcs  siuee  the 
year  1674,  and  for  reset  and  conrerse  with  in- 
tercommunefl  ponKOti^i,  ami  not  compearing, 
Ufaa  with  the  rest,  on  February  18th,  107 9,  or- 
id«fed  by  the  Council  to  ht  detiomieed,  and  put 
iQtliebom. 

Upoti     I  Fjtb,  1679,  the  Oocnci!  ap- 

fc'i  riofa  rommittee  of  Ptibuf? 

lo  Uw  tbllowing  effect :  *^  That  they 
WtH  a  letter  of  thankn  to  C.  Came  and 
"fVuiHtm  Camiichael,  sheriff- depulcH  of  Fife, 
for  their  dili^ce  in  ^csrcliixig  after  the  mm^ 
4eTtri  of  tb«  primate  ^  and  Ind  impowered 


proTc ' 


terest,  and  also  at  the  instance  of  lievtenaiil  1 
collonell  Edmond  Mayne  against  master  WiU 
liam  Ferguson,  of  Kellock,  Mr.  >VilIiaui  aul  i 
Alexauder  Qordoos,  of  Earlatomi,  elder  aud 
younger,    and    James    GorJon,   youut^er    ofj 
Craishley  ;  and  alao  aneut  our  said  soverai^nt  j 
lord^a  other  crimtnall  letters,  raided  at  the  in*  ' 
stance  of  his  majestie^s  said  adrocat  far  hip  < 
hytiesentereBt,  and  Uertenant  colonellJames 
liouglaes,  his  infortner  agaivest "-  ■      Gordon, 

of  CulTenan, —  Dunbar,  of  Mnchrimore, 

and  I  M*Ghie,  of  Lai^e,  mak  and  men-  j 

tion,  That  wher  notwithstanding  be  the  comrooa  ] 
I  awe,  la  we  of  nations,  lawes  and  acts  of  per-  i 
Itament,  and  constant  practice  of  this  kingdume» 
the  ryaein 
Dumoer  of 


fing  of  his  majesties  subjects,  or  anj 
of  them,  the  joyning  and  a5semblein|f  \ 


them  to  secure  and  put  under  inTCntftrytbt! 
goods  of  John  Balfour  of  Kink>cb«  Maekstouo  . 
of  Rathillet,  the  three  Balfonrs,  in  Gilstoun^ 
persomi  most  suspect  of  the  murder,  until  thejr 
them9€»lves  be  brought  to  a  trial :  thai  they  had 
called  before  them  ten  persons  apprehended  in 
the  south  by  the  laird  of  Meldrum,  two  of  j 
which^i^ohort  Ncilson  and  NIcol  Story,  caii  J 
make  great  discoreries  of  Welsh  his  haunti 
mnd  reset,  Neilson  baring  confessed  that  h« 
rode  wiih  him  and  Btory ;  that  he  collected 
contributiotis  at  their  raeetingi*,  rolls  of  which 
were  found  on  him.    They  are  neTuittctl  lo  tht  ' 
adrocate,  with  other  four  prisoners  sent  in  * 
from  Air  by  caphiin  Murray  ;  and  are  to  coti« 
linue  in  prtson  till  they  reoeire  a  hl»ci  tor  b©»  < 
rng  at  conventicles.    That  the  cautioners  of  1 
Mr*  Alexander  Gordoo  having  forfeited  thdrf 
bond,  by  not  prodncing  him,  be  dmrged  M  . 
ftre  thousand  merks ;  that  Mr«  Andrew  Ken*  1 
tiedy,  of  Clowbuni,  uptm  reftnlng  to  depoo^ j 
be  held  ••  confess,  aud  fined  hi  a  iboostli] 
4 


bi 


32  CHARLES  II.  ProeeedingiagaimitheChrdaMofEarhi&un:  [48 

Ucal,  are  most  •detestable,  horrid,  hynotu,  and 
abominable  crimes  of  rebellion,  treaaon,  and 
lese  majastie,  and  are  punishable  with  for&ul* 
ture  of  iyfT,  lands,  beritas^,  and  escheat  of 
moveables ;  and  be  the  third  •  act  of  the  first 
parliament  of  king  James  the  Ist,  it  is  statut 
and  ordained,  that  no  man  openlie  nor  nottoorly 

ceptM'Ghie,  ofLarflf,  who  is  coutinaed  until 
the  second  Monday  of  June." 

Under  date  Aug.  21, 1G83,  Wodrow  writes, 

*'  Earlstoun's  process  before  the  jnsticiaiy 
is  very  short,  upon  the  same  day.  They  pro* 
oeed  upon  the  former  sentence,  and  only  nam* 
the  day  for  execution.  '  The  Lords  find  the 

*  pannel,  Alexander  Gordon  of  £arlestoan|  was 

*  found  guilty  of  treason  by  an  assize,  Fe- 

<  bruary  19,  1680,  and  ailjudged  to  be  exe* 

*  culedand  demeaned  as  a  traitor,  when  taken  ; 

*  being  now  apprehended,  he  is  sentenced  to  be 

*  beheaded  at  the  cross  of  Edinburgh,  Sep- 

<  tember  28,  next.'  This  is  all  I  find  about  this 
gentleman  in  the  criminal  records: 

"  In  the  Council  llegisters  there  is  much 
about  him,  but  I  shall  not  enter  into  any  larger 
detail  of  his  affair.  He  was  taken  ffoing  to 
Holland  the  last  of  May,  or  first  of  June  this 
year,  which  made  a  mitf  hty  noise,  and  people 
thought  a  great  discovery  would  have  been 
made;  every  body  was  upon  the  scent  and 
chase  as  to  the  plot  against  the  kiug*s  life,  and 
the  council  and  bishops  hoped  for  wonders  out 
of  Earlstoun's  papers,  but  there  was  nothing  of 
that  kind  to  be  fuuqd  in  them.  The  real  ac« 
count  of  that  matter  in  short  stands  thus. 

*^  Earlstoun  had  been  abroad  very  nrack 
since  Bothwcl ;  he  came  home  this  springs, 
andjoyncd  himself  to  the  society  people,  where 
he  was  safest  from  falling  into  the  manager* 
hands.  In  April  or  May,  at  one  of  tneir 
general  meetings  at  £dinhui^h,  I  fmd,  by  the 
origrjnal  records  of  the  societies,  that  he  was 
pitched  upon  by  the  general  meeting  to.  go 
affain  to  Holland,  and  joy  ned  in  a  commisston 
With  Robert  Hamilton  brother  to  the  laird  of 
Preston,  his  brother  in  law,  for  representimf 
the  true  condition  of  these  people  and  their 
principles  to  the  reformed  churches  abroad,  f 
nave  before  me  the  copies  of  their  commissioa 
and  instructions,  and  several  lotters  and  repre-  • 
seutations  they  sent  with  him,  too  long  to  be 
insert  here,  but  they  have  no  relation  at  all  t» 
the  Jilnfflish  plot. 

**  I  nnd  by  an  original  letter  in  my  hands 
from  Earlstoun  to  the  societies,  dated  New- 
gate, June  9,  this  year,  that  when  he  had  got 
safe  to  Newcaiitle  with  Edward  Atkin  his  8er« 
vant,  formerly  spoke  of,  and  was  aboard  a  ship 
for  Holland,  Kome  waiters  came  and  challenged 
them  being  strangers.  Eurlstoun  fearing  the 
seizure  of  the  papers  he  had  with  him,  dropt 
them  into  the  sea,  where  they  were  noticed, 
and  taken  up,  and  both  of  them  seized  and. 
sent  up  to  Newgale,  whence  they  with  the 
papers  were  sentoowu  to  Scotland  to  lie  tried. 

*'  June  2.  The  council  write  a  letter  to  the 


47] 

Cogither  in  armea  without  and  contrary  to  his 
tnaiesties  command,  warrand  and  authoritie, 
and  the  abating,  assisting  recepting«nd  keeping 
correspondence  with  such  rebel  Is,  and  supplie- 
ingof  them  with  levies  of  men,  horse,  money, 
orarmes,  and  furnishing  of  them  with  meat, 
drink,  powder,  ball,  and  other  munition  bel- 

merks ;  that  Mr.  Robert  Maxwell,  now  cour 
fined  at  Paisly,  because  of  his  great  age  and 
infirmity,  have  the  diet  continued  against  him, 
he  finding  caution  to  appear  when  called,  un- 
der the  pain  of  a  thousand  merks  ;  that,  upon 
the  testimony  of  the  archbishop  of  Glas- 
^w,  Mr.  John  Law  be  dismissed,  upon  cau- 
tion, to  appear  when  called,  upon  bond  of  a 
thousand  merks;  that  Bennet,  of  Chesters, 
continue  in  prison  till  he  receive  an  additional 
libel ;  and  Scot,  of  Pitlochie,  and  his  cautioners 
be  cited  to  the  next  council  day." 

The  Council  also  continue  Eariestonn's  case 
till  next  diet. 

The  Gordons,  of  Earlestoun,  elder  and 
younger,  are  mentioned  by  name  in  the  Pro- 
clamation published  by  the  Scots  Council,  on 
June  2C,  1679  (inserted,  N""  XXX,  in  the  Ap- 
pendix  to  2  Wodrow)  by  which  the  king  dis- 
charged and  prohibited  all  his  '  subjects,  men 
or  women,  that  none  of  them  offer  or  presume 
to  harbour,  reset,  supply,  correspond  with, 
hide  or  conceal,  the  persons'  therein  numerated, 
or  any  others  who  concurred  or  joined  in  the 
late  rebellion,  or  who,  upon  the  account  thereof, 
had  appeared  in  arms  in  any  part  of  the  king  • 
dom  ol^Scotland. 

Wodrow,  in  relating  the  transactions  at 
Bothwel-brid^  [June  92, 1679]  says,  *«Whe- 
ther  it  was  this  dtky  or  the  following,  I  know 
not,  but  at  this  time  that  excellent  person, 
William  Gordon,  of  Earlestoun,  who  was  com- 
ing up  to  the  western  forces,  was  killed  by  the 
English  dragoons."  It  seems  to  be  clear  that 
the  person  spoken  of  in  the  above  passage,  is 
the  Alexander  Gordon,  elder,  of  the  Case  be- 
fore us ;  for  under  date  February  18th,  1680, 
Wodrow  writes,  "  Mr.  William  Fergusson,  of 
Kaitloch,  Alex.  Gordons,  elder  and  younger, 
of  Earlstoun,  James  Gordon,  yoiuiger,  of 
Craichlaw,   William  Gordon,  of'^  Culvennan, 

Patrick  Dunbar,  of  Machrimour,  and 

M'Ghie,  of  Larg,  are  called." 

**  It  hath  been  remarked  before,  that  Earies- 
toun  elder  was  killed  about  the  time  of  the  de- 
feat. This  ^ood  man  is  prosecuted  afWr  his 
death,  of  which  we  shall  meet  with  more  in- 
stances." [See,  too,  in  this  Collection,  vol.  2, 
D.  707,  the  Case  of  Robert  Logan,  and  the 
Note  at  the  end  of  that  Case,  p.  722.  See, 
alM,  Laing's  History  of  Scotland,  edition  of 
1804,  vol.  3,  p.  54,  where  it  is  said,  «<  Ac- 
cording to  a  le^al  maxim  that  no  person  can 
be  condemned  m  absence  his  (Logan*s)  bones 
were  dog  up,  and  in  parliament  produced  and 
srrai^ed  at  tbe  bar  "]  «  The  prepared  witnesses 
depone  as  to  their  accession  to  the  rebellion, 
•Ad  they  all  ire  ferfeitad  in  common  form,  ex- 


lituaent,  ftistttatut^lUatciomem  wilfuUie  rece|it, 


^nuyor  of  Kewcasillc  u|>oq  thts  ufiair.  *  Sir,  We 
/  received  jour  cf^K^rtiiif,  wlicrein  yuu  ae<jiiniQt 

*  UA  ivitli  iwo  perKuns  aptiri'lteiiikJ  ami  com* 
tnitU'ii  to  hig  iiinjffttv  »  gaol  iik  your  toivn, 
with  whom  arc  lound  sc:vcTttl  M;ditioU9  papers 
anii  liHt«r5,  utidlbat  these' (uMsotiH  nere  ^ouig 
bej^oml  !tL'u»  trndtT  ilie  T  Alexainler 
Pi'iiiglo  ami  Edwaril  1  ,  but  were 
hy  voiir  T  -  \<'ntc'il,  uuii  muir  papers, 
U'htch  tl                  :  lod  to  destroy,  preserved. 

P  Colonel  S-, «,,..-  ;iUo  liaili  sent  us  copies  oi 
f  some  of  tlie*e  seilltiouij  paptrni,   the  ongitmls 

*  whereof  yoti  have  done  u ell  to  send  to  bis 

*  luniesty.  We  are  very  senstible  of  your  care 
>  arid  zeal  tn  his  tiirtjesiy*s  service,  and  return 
~  yi^u  thiiuks  for  nc(]uaiutin^  us  therewith,  and 

desire  you  may  be  [^leased  in  detain  them  in 
Aeparate  prisoos,  ainl  continue  your  care  in 
searching  for  susj^et  petsonB,  |;mUy  of  pur- 
suing ju'ditious  courses  in  this  kingdouQ  ;  for 
we  liave  reason  1o  (lelyve  that  several  reliel- 
preachirs,  aud  oUier  fugitives  from  Justice, 
,  do  iurk  concealed  in  and  alioui  your  towa. 

*  We  shall  not  he  wanting  to  iiiforru  his  tnajesly 

*  of  yourzeaJ  iu  his  service.    Yours,  &Cp 

*  Aberdeen.* 

^*  At  the  same  timethey  write  another  letter 

coloDel  Strulhei-?,  signifying.  They  received 

13  of  the  tirst  instant  with  the  copies  of  some 

pf  the  pup4H^,  thank  him  for  it,  and  desire  Inm 

to  continue  hLs  diti^ence  in  discovering^  seili- 

lous  aod  suspect   |»et'Soiis  in  tin?  North   of 

"iogland. 

The  council  were  very  e^tact  in  the  exa- 
jnatioii  of  all  the  papers,  when  sent  down  lo 
tcin.  They  drew  up  their  (|uerics  lyid  written 
answers  from  Earlstoun  ;  he  wus  mo^t  Ingcs 
Ituous  in  giving  accounts  of  ull  he  knew  with 
fcspectto  the  paperSi  as  I  find  by  a  copy  of  his 
«aswer!i  to  the  council  r|uencs,  and  there  was 

*  ideed  nothing  in  tJiem  save  fornmi^Hions  and 
itruciioDs  to  htm  and  Mr.    Jlumi1lon«  with 

etters  to  some  Dutch  ministcrii  and  >krot^JMen 
Holland^  and  papers  on  civil  busiiiesM.  And 
ter  all  their  endeavours  to  find  Bomu%^  hat  re- 
live to  the  Plot,  they  could  fix  upon  nothing", 
T  nothiii|2r  was  to  he  fouml  of  that  nature. 
**  Nevertheless  the  mana^ei-*,  ufWr  the  jus* 
ary  had   renewed  their  (ornier  !$cntence  of 
lieath  n\Mtn  him,  resolve  to  put  him  to  the  tor- 
re.     And  liein^  sti  aitene<l  in  point  of  law  to 
c  of  deaths  the 

•  Liht  honoumbfe, 
I  it  Lirlstnuu  having 
I  ;  ^  I   ri  ,  md  examined 

Imri!    vxliiMM,     It   Sterns, 

can  he  had  from  all  the  iuter- 

ro|f;»  i^y  could  propoHc  to  him,  than 

what  hath  bemt  alfc^y  put  in  writ,  anil  seut 

to  his  royal  liighiMms  •tid  your  Ivrdttiipi  and 

VOL.  XI. 


orture  a  ]» 
[.council  V. 

^  by  liio  council  and  j 
C*  tiieir    iiijiitlti:i,    niul 
'  not' 


itaiiie  or  doe  favour  lo  optn  i 
ht*\h  agairM<t  Ut^  ni  jjesiir  ;md  the  commi*vi  lawc, 
under  the  paint:  of  forfAltuir ;  and  be  the  lour* 
tdnt  act  of  the  sieijtl  parUameuL  of  king  Jamei     ! 

the  council  having  had  under  their  c^mKiileni- 
tion  what  is  further  to  he  done  anient  him,  h«  ] 
Icing  a  person  under  the  sentence  of  deaiJi 
for  hijiifh  treason,  thought  fit,  in  regard  ther<i 
are  only  in  town  three  of  the  justices,  th« 
rest  not  being'  to  l»e  here  till  Noirember,  lo 
desire  your  lord*(hi p  to  take  a<l  v  ice  of  his  ma- 
jesty *s  advocate,  (now  at  l^ondon)  if  by  th« 
luvvs  of  this  kingdom,  and  in  thq  circum- 
stances he  is  now  in,  bchtg  under  ihe  sentence 
of  death,  he  maybe  put  to  the  ijuestion  by 
toiiure,  upon  such  pertinent  questions  as  your 
lordship  and  he  shall  think  fit  to  <liaw  up, 
And  if  he  find  that  he  may,  hy  the  lawt  of 
tliis  kingdom,  be  now  put  to  the  torture,  that 
Ibe  advocate,  as  soon  as  may  be,  come  dowo 
himself  and  answer  any  thing  that  shall 
hapj>en  to  be  objected  agaiust  ii  by  the  said 
Earlstoun,  or  send  acommifision  to  some  fit 
person  to  do  it  for  him  io  absence,  against  this  • 
next  council  day,  September  11,  with  such 
interrogatories  as  shall  be  thought  fit  to  hv 
proposed,  that  tivc  council  mtiy  do  justice  in 
that  matUT,  The  justices  having  met  this 
day  have  given  us  an  account,  that  they  hava 
ap|ioime<l  the  28th  day  of  8epleml>er  for 
putting  the  sentence  of  death  in  e^ecutioii 
against  Earlstoun.     I  am,  6tc. 

*  Aberdeen,  Cancel*  I.  P.  0.' 

"  Ad  answer  came  not  t«  this  letter  until 
September  20,  whtn  a  letter  froui  IMiddleton, 
secretary,  dated  Heptember  li,  to  the  chun- 
ceHor,  is  read^  and  follovvs:  *  My  lord,  In  an- 
swer to  yours  of  the  2  l»t  of  August,  Iain 
now  by  the  kind's  command  to  aci^uaint  your 
lordship,  that  his  majesty  in  a  full  Quorum 
of  his  privy  comicd  of  Scotland  now  her^ 
proposed  to  his  advocate,  wliether  Alexauder 
Gordon  late  of  Earlstoun,  notwithstanding  of 
his  being  condemned  to  die,  might  be  put  ta 
the  que^ition  by  torture.  II is  answer  was, 
thai  though  no  man  can  be  put  to  turtu 
upon  intemigatories  only  rcliiting  to  thecal] 
for  which  he  was  condemned,  >  ct  he  tnay  1 
tortured  with  i^latiuu  to  plots,  conspiracies, 
and  combinations  that  have  happened  after 
the  time  when  the  crimes  were  comuutte^l 
for  which  he  was  condemnetl.  Aiitt  sinea 
it  is  undeniable  that  the  said  Alexander  Got*  , 
don  did  accept  a  treasonable  coiiimii<^ion  from 
reb«U,  and  it  doth  api^earhy  a  letter  direct  to 
him  from  J.  N.  d>ite<t  ai  London,  i^Iarch  'JO, 
last,  that  he  was  privy  to  the  late  horrid  con-  ^ 
spiracy  again&t  his  majesty's  persou  uud  go- 
vern mt  tit,  and  yetrt^fiist'ihto  give  an  acooiml 
cither  of  those  from  whom  h*?  received  tti# 
said  commission,  or  such  a:,  he  knows  were 
accessory  to  the  said  cmispiracy,  aii«l  boib 
these  points  beinc  of  *>>  greai  c«iii5e(|ueuc^ 
fur  the  future  set  ^  majesty's  |»er90ii 

*  atid  g«v«ruiii«ai«  /i;for*  moliied  hy 


J 


5IJ 


3a  CHARLES  II.  Proceedings  against  the  Gordons  of  Earleitmn;  [Mf 


the  2tl  it  m  slatut,  that  non  rebc^il  againest  the 
kingr'n  jiersoo  or  autboritie,  or  make  warr 
fl^ramni  the  king's  [tfidfjeu,  and  nlioso  does  in 
ihecouirAir  U  be  |>itnishefl  cHer  tlte  quuhtie 
and  qaantie  of  siu-h  n?belliou ;  aod  be  the 
ti»efity  fyft  act  of  his  first  |)arltumt*nt,  h  is 
italiit»  tfiat  if  any  maa  commit  or  doe  trea- 
iOfl  a^aiiifst  the  king^^  person,  or  rysc  in  fear 
of  we.^r  flg^iinest  hirn,  or  recetils  atiy 
tli:il  hn$  comiiiitUH)  tJ'eiunn,  or  i«uf»|>lies  iheiri 
In  helji,  redd  or  council),  shall  lie  iiuiiished  as 
troitorH  ;  and  be  the  H4  act  12  pQTlitinieiil  king 
Jame^i  (5,  it  is  stJitur,  thai  wherever  any  de- 
ct&ired  traitois  repairs  m  any  j^artoflhi^  kinsjf- 
itniiienou  of  Ut^  ruujestie^s  leidf^es  shall  pre- 
sume to  rerept,  Rupphe  or  intercomon  with 
Ihcm  nrpvetliein  my  relieti' or  comfor! ;  and 
that  imnieditttcty  upon  knowleilore  of  iher  re- 
parring  in  the  bounds,  alt  hi«  majesties  obetJient 
*ulye<.'t»  doe  ther  exact  diligence  in  searching^ 
'  and  appreliending-  the  saids  traitors  and  rebelts^ 
and  that  with  all  speed  they  certifie  hin 
Riajestie,  or  some  of  his  secret  councill,  or  sorae 
permits  of  anthoriiie  and  creiiit  within  the 
«hyre,  that  surh  reMls  are  wiihin  the  same, 
tinder  the  pnine  tliat  tlie  $;aids  rebelU  an<l 
traitors  on^ht  to  suMuine  if  they  wer  a|tpre- 
hendit  and  convict  be  josiice :  lykeas  by  the 
fyii  act  of  the  Hrsl  sessi^m  of  bis  majesties  first 

'  his  majesty,  that  the  said  Alexander  Gordon 

*  shall  be  put  u>  the  (ortui-e,  and  tnterro^te  on 

*  what  may   jiertinentlv    relate   to  these   two 

*  he^ds,  to  Hit,  as  to  those  who  have  bad  ac- 

*  cession  to  tbe  tjmniing  the  said  commission, 
'  or  the  said  conspiracy,  of  which  it  fa  his  ma- 

*  jesity's  pb'asure  you  acquaint  tiie  lords  of  his 

*  privy  council.     1  am,  <ic. 

*  Mu>DLCTON.* 

"  In  pursuance  of  the  above  letter,  thecotin- 

eil   thai  S4)fi»e  day  noniinate  the   marquis  of 

Douf^bus,   earlts   of  ^'w^ddale^   Wintouo,   and 

Ijiulitht^nw,  the  loH  Livin'^touc,  E^tneral  Dal- 

ziel,  0»e  pre«tideui,  lord  Collingrtonn  and  ('as- 

tk'hill,  or  an^  five  of  them,  aj*  a  committee  to 

meet  Tuesday  next,  at  ten  of  the  clock  fore- 

fiiH>n  in  the  ordinary  place,  and  consider  the 

lot*  rrO|;iilonL"R  to  be' put  to  the  said  Alexander 

Gordon,  and  nee  him  questinned  in  th«  torture 

upon  them,  and  others  arii^in;^  fiom  theiUi  and 

"' ,  with  power  to  them  to  do  all  thmf^ 

to   that    puqro^e,  as  they  shall  see 

)tid    ontaiu   all  the  membf^ri  of  the 

iirt  to   be  present,  and   Mr   Cieorj^e 

<»,i,  L      ;u;in»   ..r,K... •    -it^  from  tbe 

advoc^iiff*  to  1  rrtintmtre* 

]AUn'^  to  thL*  X       . ., .,  „,.,*  4ij  bo  present 

wi  h  the  conmiittte, 

♦*  Aor^.n^ti'^/t'/,  Sr-:>tni]lipr  2j,  the  foresaid 
#oiki  lu^  witli  the  in- 

still I  :  'ly,   but  did  not 

apply  ti^  \iv  ytuirftiiU)*  Lr  would  be  a«  incfe' 
Kmou-«  fit*f!  nK't  e  TmII  thnrt  he  could  be  in  tor- 
inrf  lid    hij(  answers 

•rr  Sprat,  lale  bisliop 

«f  '^  Li^^'^^c^i*^  J  iii«  account  of  the 


parliament,  it  is  declared^  thai  it  shall  be  hytt 
treason  to  the  subjects  o(  this  kingdome,  or  any 
nuralier  of  them,  more  or  lesse,  u|>on  any 
t^round  or  pretext  wliatsomever,  to  ryse  or 
continue  in  arrays,  to  make  p€^ce  or  ware,  or 
to  make  any  treaties  or  leagues  with  forraigrne 
princes  or  estates,  or  amtJnqpHt  themKelvtti, 
without  his  majestie's  specjall  authoritfe  and 
approbatioa  <ir«t  iutcrponed  thereto;  and  all 
his  majestie^s  sul)jects  are  discbarofed  UfM>ii 
any  pretext  whatsomcTcr  to  attempt  any  €>t* 
these  thiufj^E^,  under  the  paine  of  treason;  and 
be  the  eleventh  act  of  the  first  stsMoooflLif 
maje^tie's  second  parliament,  it  i»  statut  and 
ordained,  that  in  tyme  coming  in  all  ca^^ea  of 
treasonable  rysein^^:  in  armes,  in  oppin  and  loa- 
nifest  rebellion,  ag^ainst  his  majestie  and  hia 
authoritte,  his  majesties  ad^  ocat  may  and  ought 
to  insist  ag'ainst  and  prosecute  such  persons,  as 
be  shall  be  ordered  by  his  majestie  or  his  privie 
councill  to  persewe,  and  if  tliey  be  cited  and 
doe  not  ap|M'ir,  his  majetftie's  justices,  notwiib* 
atandiit^'-  of  ther  absence,  may  and  ought  to 
proceed  to  consider  and  give  ther  iuterloquitor 
upon  the  lybell,  and  if  it  be  found  relevant  to 
adniiti  the  same  to  the  know  led  ei-c  of  ane  in- 
quest, and  upon  the  verdict  of  the  inquest  find- 
ing tlie  samen  proTen,  the  doom  and  sentance 
of  forfaullure  oug-ht  to  proceed  and  be  ^reo, 

Rye-bouse  Plot,  though  with  some  mistakes; 
and  so  I  shall  not  say  any  thing' of  them  here, 
but  that  neither  the  IHot  agninst  tbe  king*9 
hfe^  nor  the  design  of  risin|^  could  be  6xed  om 
this  gentleman,  or  the  people  who  sent  bia», 
who  really  knew  nothing  of  the  matter. 

**  All  I  find  further  in  tlie  He^sters  upon 
this  gentleman's  case  is,  November  23.  '  VpOti 
'  a  new  letter  from  the  king,  the  council  order 
'  Earhtoun  yet  to  be  put  to  tlie  torture  :  biit 

*  when  he  is  brou£|^ht  in,  he  appears  to  he  in 

*  diffraction,  and    phj^sicians    were  calleil  to 

*  consider  his  case.     November  27,  thii  phy- 

*  sicians  report  he  is  affected  with  that  distem- 
'  per  called  uUenaiio  mentia^  and  advi5;e  be 

*  may  be  sent  to  the  castle,  that  by  the  change 

*  of  the  air  his  case  may  be  liettcr  know  n .    f>^ 

*  cember  7,  Earlstoun  jK^titions  for  pious  di- 

*  rines  to  be  sent  to  him,   thai  he  may  have 

*  their  benefit  before  his  death,  and  as  a  dying' 

*  man  declares  his  innocence  of  any  p1otap^Ii0C' 

*  his  majefty,  prays  for  the  kin^,  and  adherea 

*  til  the  answers  he  gpiive  lo  tbeinterregfatories, 

*  He  is  reprieve^l   till  the  laiit  Friday  of  Ja- 

*  uuary.  January  17.  Karktoun's  reprieve  is 
*■  continued  till  tite  last   Friday  of  April,  and 

*  his  peiiiion  for  pardon  transmiUt  d  to  the  ae- 

*  cretary.     April  11,  he  is  r^--^  •  ^"i    «'r^iri   till 

*  Dcceml>cr.      And  in   M\\\  ihc 

*  lliis.s  for  liis  hr-ukli.     In  ^1  ^  :  'uing^ 

*  !  r/     1  bus    he  con- 
wiih  more  Uberty, 

vuh  bis  excellent  lai^^ 

tty  tbe  rcrolution.     And 

imps  and  manBiiners, 

king's  person  upon 


i 


I 
I 


and  MMi»*jti 
until  he  w 

aUihf^ 
to  lix  til 


Bcolgi^i^Uyieuuuy,  catue  to  uotbiii^*^* 


SS] 


/or 


A.  D.  \6m. 


[5* 


^od  pi'onuticred  iti  the  same  Tnanoer  as  tf  the  |)eJr- 
stHMH  accused  bail  coiupeired  aud  wer  pr^seat ; 
uevertheiesMj  the  saicl^   Mr,  VViltiam  Fei'^u- 

son,  of  Keilock,  Mr.  U  tlUam  aad  Aiexander 
Gordons »  of  Kartestr^uu,  elder,  and  y 01111^1% 

JaDii'U  Ciordou  youtig^er,  of  Craisliley, -* 

Gordcii  !il'Cul¥fnaD, —  DanbarjOfMaeh- 
i-iinoii^  and  -^ M^Ghic,  ot  Larg^e,  and  tluT 

relidlious  ussociates  and  accomptirrs,  shacking 
ofl'ail  tear  ol  God,  conscitiicc  aad  ^tasts  of 
duty,  alteg^iaiit'et  and  lo^attie  to  hii  majc^stie 
tiier  sovcraigae  and  uathc  prtoc«,  liave  inosi 
peHidiuuslie  and  irt^astmablie  presuuied  tn  com- 
initt,  and  areg-uilty  0*  tTyroei*  abo^e  meationed 
ID  suulkre,  as  Juiid  BnUour,  of  Rinlock  altaji 
capt.  Burlidi  David  HaekitoUf  of  ItaUiUet,* 
George  Balfunr,  in  Gilhtuun,  James  Uussill, 
in  ketle,  Kobf^rt  Dine ^ til K  a  tenants  aon, 
ia    Caildom,    Aodrew    liuiHan    >V  obiter,    tu 

Balmirinoch, Henry scms,  sons  to  Joho 

Henry  son,  in  Kilbraclunont,  and  Genrtre 
Fleyining',  mti  to  Gtrorge  r  leyinini^,  in  Bal- 
buthie,  these  impious  and  sacraft^ious  murders 
and  murdering"  reftiruiers,  who  to  pn^ate 
cbristiauitie,  like  Jesuits  «ioe  ii)iirder<;hrystiaus, 
these  enemies  of  mankind  having  gone  in 
April  last  tu  the  ton  a  of  New  mi  Ins,  in  the  night 
time  ibey  did  murder  in  cold  blood  f 

A  souldier  in  captain  f  compante, 

aad  left  another  of  iha  saidfi  souldiers  for  dead  t 


*  See  his  Case,  Vol.  10,  p.  791. 

•f-  Sic  in  Orig. 

t  Of  this  transaction  the  following  is  Wod* 
row  a  account: 

**  From  the  paicellinif  of  the  soldiers  up  and 
clown,  and  their  numbers  11  rid  activity,  the 
keepers  of  conventicles  were  obltpred  a  iiltle 
to  alter  their  method.  Tn»urds  liit*  eud  of 
ihB  Laat  year,  [167B]  «ome  mi nii^ten/ began  to 
withdraw  from  preaching"  wiiii  tbeir  bre- 
thren, with  wbotn  they  ussed  to  preach  in  the 
fields  formerly,  who  were  now  for  entring  ei- 
ther upon  the  indu  Igence  or  cess  in  their  ser- 
mons to  vulgar  auditories,  and  drew  up  with 
the  young  preachers  1  have  formerly  spoken 
of,  aud  continued  to  preach  together  witti  them 
pretty  much  on  diese  pointa  this  winter  and 
spring.  Some  papers  before  me,  writ  by  some 
4)f  that  side,  say,  Th;it  (iekl  meetings  in  the 
beginning  of  tliis  year  were  more  numerous 
than  formerly,  and  many  were  obliged  to  come 
with  arms  to  defend  themselves,  becau^  they 
were  trequently  attacked  by  the  soldiers  and 
garrisons  ;  and  for  their  safety  as  well  as  har- 
mony, the  miaistersandiuch  who  waite<l  iipoii 
them,  resolved  to  keep  as  close  together  as 
might  he.  They  bad  tbund  that  by  preaching 
in  separate  places,  and  scatter iug  themselves, 
iJiey  were  very  much  weakened,  und  the  sol- 
diers got  advantage  this  way  against  them, 
and  sometimes  the  mioisterfi  were  in  hazard  to 
be  seised,  and  several  of  the  hearers  were 
taken.  Therefore  they  determined  to  narrow 
themselves  into  one  meeting  iu  such  places 
which  stood  most  in  need  of  the  gospel,  and 
where  they  isigbt  gather  and  preach  in  the 


iud  therefter  having  conceaved  acnminalland 
deadlie  hatred  agamest  his  grace  the  late  arch- 
bishop of  8t.  Audi'CMs,  and  U|iou  the  thiid  day^ 
of  jlluy  li)st,  having  cruellie,  impioiu^lie  an«l 
sacralegiouslie  murdered    him,  the\  U*  esciipe 
justice  utiil  iijFoive  others  in   thei    ^tiilt  (^tiH 
ftilslie  (irclcnding  pietie  and  religion,  goe  iut*r 
the  VVestenie  shy  res,   and  nnisi  trca^onablie 
jtiyue  in  arfnc^J  with  Robert  HauMlimm,  bro- 
thfrrtothe   laird  (d*  Prestou,  Mr,  John  K.ae^ 
and  titer  accomplices*  d<ssoUit  and  Aagitkiu* 
peraoHii,  to  the  number  td'  threscore  aud  up- 
wards, who,   upon  ihe  twenty   nynllt  <lay  of  i 
May,  a  day  appointed  for  a  solemn  annie* 
versarie  thanksgiving  for  his  majesties  Hestau-« 
ration  to  the  roy  nil  government  othiskiogdorMej  ^ 
did  goe  to  the  burgh  of  Hutb^^rglcn,  and  tber 
most  proudiie  end  treasonabtie  haviit^  read  actt*! 
of  their  own  coining,  sihackiug  olfther  atleag-*  1 
ance  to  his  mjijestic,  they  most  treason  a  btie  and  j 
wickedlie  burnt  several!  acts  of  partiafuentt  as^ 
sertioghis  niajestie's  prerogatives, and tsisd>fish-  , 
iogthegoverutneot  of  the  church,  droivnetlout 
bonefyres  sett  on  in  commeration  of  that  doy^  ! 
and  therefur  they   trcusonHblie  4'0nvi»eat  and  J 
assembled  togither,  the  nmuber  of  four,  rive^^l 
aex  or  nevui  hundrcth,  or  thereby,   and   did  J 
waylay  a  small  and  few  company  of  men  under  ] 
the    command   of  the  laird  of  Glaverhoiisei  J 
and  did  tnust  cruellie  murder  and  kill  simie  iiCl 

greatest  safety*  Thus  they  cimtiinwd  lor  i 
twenty  sabbaths  without  intermiFsiMn  Iroin  De*- 1 
ceniber  to  May.  I  do  not  doubt  htii  this  ci»ors#i 
thev  took  tended  to  heighten  the  separation  j  | 
and  when  they  were  uh>ue  without  cou\ersiny  j 
with  others,  and  preaciiint:  iviili  jicrsons  morel 
moderate,  severuls  who joyned  mth  them  dii'j 
heiglitcn  the  breach,  aucf  serrw  up  matt«'rs  tliej 
length  they  came  to.  J^Ieanwhile^  ilr,  Wetsli'j 
and  others  of  his  temper  preached  in  otbe 
places,  with  whom  there  were  not  many  itrl 
arms,  aad  endeavoured  to  calm  matters 
much  as  might  be. 

**  lJ|»ou  the  30th  of  Maj'ch  tliere  vas  a  ser-l 
men  and   large  tneeling  at  Cumbeihead,   mi 
the  parish  of  LesinahagOj  not  tkr  frotn  Lanerk.i 
The  soldiers  hearing  of  it,  sent  a  good  body  nfi 
men  to  dissipate thctn  :  Tlie  patty  undei^itand- 
ing  the  numbers  of  the  iiR^etiTtg,  aud  how  weU 
many  of  them  were  armetl,  did  not  Hnd  it  con* 
venieot  to  attack  ibem  ;  but  kept  at  some  rlis- 
tanre,  and  satisHed  themselves  with  nHmn  some 
women,  who   were  going  to  the   me*  iin;^'',  of 
their  plaidj«,  bibles,  and  the  like,  and  seizing 
some  men.     This  coming  to  the  knowledge  of 
the  meeting,  a  good  number  was  sent  off  iu 
arms  to  recpare  the  prisonei-s,  and  the  womeos 
plaids,  Sec.    The  commander  ef  the  soldiers 
refused  both,  and  a  scuflle ensued,  wherem  the 
offictr  WHS  woundeil,  aud  some  of  the  soldiers 
taken  prisoners  ;  but  they  were  soon  dismisaed. 
When  the  account  of  tfiis  came  to  Glasgnir. 
my  lord  Bmhs  aad  the  soldiers  there^  ma^ch^Aj 
lip  towards  Lanerk,  und  the  country  thercalf< 
was  sore  harrastsed  for  some  weeks. 

**  The  accounts  of  this  icuffle  catue  in  to  1^1 


I 


32  CHARLES  tl.  Proceedings  agahiat  the  Gordons  of  Edrkiiaun.  [6( 

persons  who  (last  upon  &e  assyieof  Oordom, 
of  Earlestoan,  and  others,  returned  ther  ver- 
dict io  presence  of  the  saids  lords,  wherof  the 
tenor  followes : 

The  assise  all  in  one  voice,  be  the  mouth  of 
sir  Patiick  Nisbet,  of  Dean,  ther  chancellor, 
ffinds  Mr.  William  and  Alexander  Gordons,  of 
Earlestoun,  elder,  and  younger,  master  Wil- 
liam Ferguson,  of  Ketloch,  James  Gordon,  of 

Craichley,  younger,  Gordon,  of  CuWe- 

nan,  ^—  I>unlMLr,  of  Machrimoir,  younger, 
^iiihie  of  the  crimes  of  rebellion  and  tr^^n, 
in  rcs|)ect  of  ther  accession  to  the  late  rebellion, 
conibrme  to  the  depositions  of  the  witnesses. 
Sic  SHbscribitur^      Pat.  Nisbet,  Chan. 


6SJ 

fries ;  that  he  sawe  Gordon,  of  Culrenan,  in 
armes  with  them  at  Hamilton-Muir,  as  also  he 
sawe  master  Samuel  Amot  in  company  with 
them  at  Hamilton  cotiM  icientiit :  he  sawe  the 
saids  persons  at  the  jplaces  forsaids  and  knewe 
them  belbr ;  and  tliis  is  the  truth,  as  he  shall 
answer  to  God,  and  this  he  'sawe  a  fewe  dayes 
befor  fiotliwelbridge. 

Sic  Subscribitur^  J.  M'Culu>ch. 

Robert  Park,  messenjzer,  at  Sanquhar, 
purged  of  partiall  GoandU,  solemulie  swome 
and  examined,  depons  he  sawe  the  rebells  cuter 
Sanquhar  some  fewe  dayes  betbr  the  feight  at 
Both wel- bridge,  in  armes,  with  drums,  collora 
and  ane  trumpet,  depons  some  of  them  took 
free  Quarters,  and  some  not;  that  amongst 
them  he  sawe  Gordon,  of  Earl^toon,  younger, 
Ferguson,  of  Ketloch,  Gordon,  of  Craichley, 
younpfer,  in  armes,  and  that  be  sawe  them 
march  away  the  nixt  momine  with  the  rebells 
towards  Cumnock,  depons  &ey  came  in  to 
Sanquhar  with  ther  swords  drawen  under  the 
notion  of  three  captaines,  and  this  is  the  truth 
as  he  shall  answer  to  God,  and  depons  be  knewe 
the  saids  persons  formerlie. 

Sic  Subscribitupj  Ro.  Parr. 

William  M^Geornty  toun  clerk,  of  Dumfries, 
purged  of  partiall  rouncill,  and  soleinniie 
swome,  depons  that  he  sawe  Gordon  of  Earles- 
toun, elder,  in  company  with  the  rebells, 
marching  throwe  Dumfrcis  in  June  last,  a 
fewc  dayes  lM.'for  Bothwelbridge  causa  gci- 
entia  :  he  sawe  him  at  ane  kirk  befor,  and  he 
was  called  Earlestoun,  elder,  by  those  wer 
present,  and  this  is  the  truth  as  he  shall  an- 
swer to  Go<l. 

Sic  Subtcribitur,  W.  MArcEORGC. 

Hu^h  M^Watler,  in  Stonrares,  being  so- 
lemnlie  su«»nie,  purged  and  exaniinei),  depons 
he  sawe  Dunbar,  of  Machrimore,  voun*^er,  and 
Gordon,  of  Craichley,  in  armes  with  the  rebells 
at  Haniiltoun-muir. 

Sic  Subscribitiir,        Htcii  M'WATrER. 

The  lords  ordaines  the  assysc  to  inclose,  and 

returue  ther  verdict  to-morrow  at  eight  a*clock. 

19lh  February    1680.     I'he  said  day  the 


Efter  oppiningund  reading  of  the  whilk  ver- 
dict ofassyse,  tiie  lords  justice  generall,  jus- 
tice clerk,  and  commissioners  of  justiciarie, 
be  the  mouth  of  Adam  Anid,  Dempster  cf 
court,  decerned,  and  adjudged  the  saids  BIr. 
William  and  Alexander  Gordons,  elder  and 
younger,  of  Earlestopn,  Mr.  William  Femi- 
son,  of  Ketloch,  James  Gordon,  of  Craich^, 
younger,  Patrick  Dunbar,  younger,  of  Macn- 
rimoir,  and  William  Gordon,  of  Cuhrenao,  to 
be  cxccut  to  the  death,  demained  as  traitors, 
and  to  underlye  the  paines  of  treason  and 
utter  punishment  appoyuted  by  the  lawes  of 
thisrealme,  when  they  shall  beapprehendit,  at 
such  tymes  and  places  and  in  such  manner  as 
the  lonls  justice  general,  justice  clerk,  and 
commissioners  of  justiciary,  shall  appoynt,  and 
ther  names  memorie  and  honours  to  be  extinct, 
and  ther  names  to  be  riven  furth  and  delate  out 
of  the  bookes  of  armes,  suae  that  ther  posterkie 
may  never  have  place  nor  be  able  hereiler  to 
bruik  or  ioyse  any  honours  offices  nor  dignities 
within  tnis  realme  in  any  tyme  coming,  and 
to  hare  forfault  omitted  and  tint  all  and  sundrie 
ther  lands,  heretages,  tenements,  annual  rents, 
offices,  titles,  dignities,  tacks,  steadings,  roumea* 
|K»sscssions,  goods  and  gear,  whatsomever  per- 
taining to  them,  to  our  soveraigne  lord,  to  re- 
mainn  |>er|>etuallie  with  his  by  nes  in  propertie : 
Which  was  pronounc'bd  for  doom,  whenipon 
his  majesties  advocate  asked  and  took  instru- 
ments. 


05]        Pr0U€dmg9  4|g«ffitl  JoAii  L^ri  Bm^gengf.        A.  D.  H(8^ 


Wi 


327.  Proceedings  against  John  Lord  Bargeny,*  for  Treason; 
3S  Charlies  II.  a.  d.  1680.  [Now  first  printed  from  the 
Records  of  Justiciary  in  Scotland.] 


CuAU  j€tnciARi£,  S.  D.  N.  Regici,  tenta  In 
Praetorio  Burgi  de  £diiiburgb,  decimo 
iezto  die  Metisis,  Martii,  1680,  per  tio  • 
norabiles  Virot  DonaiDos  Georgium 
K*Kenzie  dc  Tarbet  Justiciarum  Gene- 
ralem,  Thomam  Wallace  de  Craigie,  Jus- 
ttciariee  Clericum,  Jacobum  Foulis  de  Co- 
lintouD,  Robertum  Nairn  dcCStratburd,  Da- 
videm  Balfour  de  Forret,  Davidem  Fal- 
conar  de  Newtoun,  et  Rogcrum  Hogfe  de 
Harcaras,  CommissioDarios  Justiciaris 
didti  8.  D.  N.  Regis. 

Curia  legitime  affirmata, 

Jntran^ 

John  Lord  Barganiej 

TnDYTED  and  accused,  Tbat  wber  not 
withstanding  be  tbe  common  lawe,  and  lawe  of 
nations,  and  constant  practique  of  this  kingdome 
and  paiiicularlie  be  the  twentie-fyfl  act  of  the 
•ext  parliament  of  king  James  tlie  2d,  It  is 
sUtot  and  ordained,  that  if  any  man  committ 
or  doe  treason  againest  the  king's  person,  or 
bis  raiyestie,  or  receipts  any  that  has  committed 
treason,  or  that  supplies  them  in  help,  redd  or 
eouncill,  they  shall  be  guilty  of  treason  ;  and 
■ickiyke,  be  the  hundreth  tourtie  and  fourth 
act  of  the  twelth  parliament  vf  king  James 
tbe  sext.  It  is  statiit  that  wherever  any  de- 
claired  traitor  or  rebells  repairs  in  any  part  of 
this  realme,  non  of  his  majesties  leitfges  shall 
presume  to  recept,  supplie  or  iutercomon  with 

*  "  All  the  account  I  can  gi?e  of  the  trouble 
of  Jo|in  lord  Bargeny,  in  the  shire  of  Air,  is 
from  the  registers.  He  was  susnected  to 
fiiTour  the  cause  of  liberty,  and  to  be  of  the 
other  side  from  the  duke  of  Lawderdalc  ;  and 
last  year  after  Bothwel,  some  surmises  were 
raised  of  his  favouring  the  people  concenied 
in  that  rising,  whereupcn  he  was  made  pri- 
soner in  Blackness.  In  the  council  registers, 
December  4,  last  year,  just  afler  the  duke  of 
York's  coming  down,  I  iind  a  report  from  a 
committee  who  had  been  appointed  to  examine 
him  in  Blackness,  that  they  had  taken  his  de- 
claration, which  is  read,  but  not  recorded. 
That  day  the  govci*nor  of  UlacknesK  is  allow- 
ed to  permit  persons  to  speak  with  him  in 
luB  own  hearing,  and  to  gire  him  pen,  ink  and 
paper,  providing  he  see  whatever  lie  writes. 
At  the  same  tioie  the  advocate  produceth  a 
letter  from  the  kinsf  ordering  him  to  pro- 
ceed against  the  loru  Bargeny,  as  having  in- 
cited persons  to  rise  in  the  late  rebellion.  No 
more  18  about  him  in  the  registers  till  January 
14,  this  year,  when  their  act  about  him  runs, 
**  Aoeat  the  petition  of  John  lord  Bargeny, 
VOL.  XI. 


them,  or  to  give  them  any  releiff  or  comfort^ 
,  and  that  immediately  upon  knowled|^e  of  ther 
]  repairing  in  the  bounds  all  bis  majesties  obedi« 
>  entsilhjects  doe  ther  exact  diligence  in  searoh* 
I  ing[  and  apprehending  the  saids  rebc4ls  and 
!  traitors,  ana  that  with  all  speed  they  certifie 
I  hismajestie  or  some  of  his  secret  council,  or 
some  persons  of  authoritie  or  credit,  within 
'  the  sliyre,  that  such  rcbclls  are  within  tho 
'  samen,  under  the  paine  that  the  saids  traitors 
'  and  rebells  ought  to  sustaine  if  they  wer  ap«> 
prehendit  and  convict  be  justice,  and  be  tna 
fourth  act  of  the  sexteint  parliament  of  king* 
James  the  sext,  whosoever  invades,  or  persewea 
any  of  the  lords  of  session,  secreit  eouncill;  or 
an^  of  hifs  majestie's  officers  for  doeing  of  hia 
raajeslie's  service,  shall    be  punished  to  the 
death ;  lykeas  be  the  lawes  abd  practque  of 
this  kingdome  the  designing,  contryring,  o^ 
hounding  out  others  to  massacar  and  assas* 
sinat  his  majestie^s  commissioner  and  repre* 
sentative,  is  in  itself  the  cryme  of  lese  majestie^ 
his  majestie's  commissioner  beings  in  the  con* 
struction  of  lawe,  his  hyncs  representative,  and 
in  place  and  vice  of  his  royal  I  persob :  and  be 
the  second  act  of  the  second  session  of  hia 
majesties  lii*st  parliament.  It  is  declaired,  that 
if  any  person  or  persons  shall,  by  wrcitincf, 
printing,    or    be   any   malitious  and   advised 
speaking,  expresse,  or  dcclaire  any  words  to 
stirre  up  tbe  people  to  the  hatred  of  his  ma- 
jestie's royall  prerogative  and  supremacie,  in 
causes  ecclesiastick,  or  of  the  government  of 

"  that  he  hath  been  now  two  months  close 
<'  prisoner  in  Blackness,  occasioned  by  the 
'*  suggestions  and  malicious  informations  of 
<*  his  enemies,  and  he  being  conscious  of  hia 
*<  innocence  of  any  disloyalty  that  can  be  laid 
**  to  his  charge,  and  that  in  his  heart  he  did 
"  never  harbour,  far  less  did  he  ever  practise 
"  any  evil  against  his  majesty  or  government, 
''  craving  that  he  may  either  be  liberate,  or 
**  presently  put  to  a  trial  ;  and  tliat  in  the 
<*  mean  time,  or  since  his  imprisonment,  there 
^*  may  be  no  process,  or  decreets  of  sessioa 
^*  moved  in,  or  given  out  to  his  prejudice,  hia 
<*  adversaries  at  this  time  being  ready  to  take 
*'  advantage.  The  eouncill  ordain  the  said 
**  lord  to  be  brought  in  to  the  castle  of  Hdin- 
**  burgh,  whenever  the  advocate  hath  pre- 
**  pared  his  indictment. 

«  This  matter  is  still  put  off  till  the  end 
of  March,  wht^n  I  find  him  before  the  jus* 
ticiary .  The  managers  had  a  mind  to  have  had 
his  estate,  but  their  prohution  failed  them,  and 
the  crimes  in  his  libell  must  be  reckoned  of 
the  advocate's  framing.''     2  Wodrow/p.  151* 

F 


67] 


32  CHARLES  IT.        Proeeedinga  against  John  Lord  Bargeny,        [68 


the  church,  by  archbishops  and  bishops,  as  it 
is  now  settled  by  la  we,  or  to  justice  any  of  the 
deeds,  actings,  practices,  or  other  things  de- 
claired  a^j^inest  by  the  said  act,  every  such 
person  or  persons  so  offending  and  being  le- 
gallie  convict  thereof,  are  declaired  incapable 
to  cxerce  any  pia6eor  imploymcnt,  civill,  ec- 
elesiastick,  or  militarie,  within  thi^  church,  or 
kiugdonic,  and  are  lyabic  to  sach  iarder  paines 
as  are  dewe  by  the  la  we  in  such  cases.  Ne- 
Tcrthelesse  it  is  of  veritie,  that  the  said  John 
lord  Bargany  having  shacken  off  all  fear  of 
God,  respect  and  regaird  to  his  majesties  lawes 
gnd  person,  his  native  prince,  and  to  whom  he 
was  in  ane  more  eminent  way  obleidgcd,  his 
majestic  having  raised  him  and  iiis  predicessors 
to  be  peers  of  tuis  his  majestie's  ancient  rcalmc 
and  heredittary  counccllors  tberin,  and  having 
licstowcd  upon  hiin  and  his  family  extra- 
ordinary marks  of  his  bounty  as  well  as 
favour,  yet  the  said  John  lord  Bargany  for- 
gettini^  all  these  obligations,  and  the  horrid  and 
fircadtull  effects  of  that  late  rebellion  which 
did  ovoiihrowe  the  monarchie,  and  enslave 
and  depau|M?ratc  the  subjects  of  this  kingdome, 
and  hoping  as  it  sc^emcsto  raise  himself  by  such 
new  coni'usions  and  rebellions  tu  be  a  chieff 
ringleader  in  and  disposerof  the  government 
of  the  kingdome,  from  a  share  in  which  go- 
Tcmment^  suitable  to  his  fancied  merit  he 
thought  himself  excludit  by  the  present  choise 
of  his  majestie^s  odicers  and  servants,  he  di<l 
theriur  most  treasouablie  in  ane  or  other  of  the 
monclhs  of  the  years  1074  or  1675,  with 
gri-at  onthsund  execrations,  curse  some  of  the 
chic/riiiibiliticof  the  king<lome,  because  they 
would  not  make  tlienVselves  the  head  of  tho 
phunaticks,  and  swore  that  they  w  onld  never 
signifie  uiiy  thing  because  they  hade  lost  that 
oportnnitio*;  and  because  hisi  grace  the  duke 
of  I  .uiulcrduie  liadi.',  by  his  extraordinary  pru- 
dence,* care  und  loyaltie,  delate  the  designcs 
tliat  he  and  the  said  phanaticks  wer  inanngeing 
for  disturbing  the  government  of  the  church 
and  state,  he  did  in  aiif  or  other  of  the  miMieths 
of  the  \cm-s  1077   or   1678,  puUictlic  regrate 


that  the  English  or  the  phanaticks  did  not  kill 
and  assassinat  the  said  duke  of  Lauderdale 
and  did  hound  out*  and  intvse  others  to  assam- 
nat  and  fall  upon  him  in  his  own  bouse,  and 
particularlie  in  the  raonethsof 
1675  or  1676,  he  did  indeavour  to  perawade 
George  Martin,  nottar,  in  Dally,  who  then 
lived  m  this  land,  that  the  phanaticks  would 
never  gett  ther  bussenes  done  whill  the  duktt 
of  Lauderdale  was  alive,  and  that  ane  ban* 
dreth  men  would  doe  more  to  assault  him  in 
his  own  house  of  Lethingtoun  then  all  tliej 
could  doe  beside,  and  because  he  would  not 
complye  vn\\\  the  said  lord  Bars[any'8  inhuman 
and  cniell  designe,  he  did  still  thcrefter  dis- 
countenance him,  and  declaired  to  his  friends 
his  bye  dissatisfaction  with  him  upon  that  ac* 
count ;  lykeas  one  Mr.  John  Welsh,  a  fac« 
tious  trumpet  of  sedition  and  treason,  and  for- 
fault  for  the  rebellion,  in  a.d.  1666,  having 
maile  a  constant  trade  of  convocating  his  ma- 
jest  ie's  snl^jects  in  treasonable  |eild  meitiDgSp 
the  said  lord  Bargany  did  keep  correspondencai 
with  him,  and  having  direct  a  letter  to  him 
whilst  he  and  his  complices  wer  contryviny 
the  last  rebellion,  he  did  send  the  said  letter  U> 
Sauchhill  by  his  own  servant  in  May  or  June 
last,  which  Ving  read  at  the  said  conventicle 
as  having  come  from  him,  did  incourage  and 
esti'emlie  invit  his  majestie's  subjects  to  ryae 
in  th|t  rebellion,  to  which  rebellion  he  did  bjr 
all  means  invite  and  drawe  in  as  many  of  liia 
freinds  and  followers  as  was  possible,  and  par- 
ticularllie  he  keep*t  ane  correspondence  with 
— *—  Cuninghame,  of  Bedlaod ;  and,  amongal 
other  letters,  he  did  wreitt  to  him  one  aboot 
the  beginning  of  June  last,  which  was  imme^ 
diatlie  befor  the  rebellion,  whereby  he  eam- 

estlie  desyrcd  the  said Cuninghame,  of 

Bedland,  to  rep:iir  in  all  beast  to  the  WesUand 
army,  and  to  move  and  perswade  all  gentle- 
men and  others  about  him  to  joyn  witn  him, 
wher  they  should  see  the  said  lonl  Bargany 
himself  snortlie,  to  which  rebellion  he  might 
invite  the  [Hjople  with  gi-eater  ctJiifnlence,  be- 
cause it  was  Lilt  they  allon  that  sh!)uld  counte- 


nance that  buhseiiifs,  but  persons  of  fare  greater 
Ste  the  Case  of  tho  duke  of  Lauderdale,  I  qualitie,  win)  would  assuredlie  joyn  with  and 
vol  Ci,  p.  1025,  of  this  Collection,  and  the  ad-  I  own  them  in  that  affaire  ;  and  albeit  many  of 
dilit>nal  <  luirtrts  a;;ainst  Laurlc;rd:ik-  in  ti:*- <  the  said  John  lord  Borgauy'sown  tennents 
»oint'rs  Tniti :.  8te  also  in  (h«^  Collection  ci"  j  hmie  bein  in  the  said  rebellion,  vet  he  did  not 
State  TuiL'ls  fioni  the  year  1600  to  1603,  pub-     give  notice  of  them  to  his  raJijostie*s  privie 


iislied  in  169'2,  pp.  Q3,  0C\  *  JSonie  pa/ticiilur 
matters  of  fact  relating  to  the  a(!niini:.!iaiiou 
of  affairs  in  Sf.oiland  undti*  the  uukcofLnu- 
derdalt',*  and  the  impeachment  ol'  the  duke 
and  duchess  of  Lauderdale,  witji  I'ueir  brother. 


couuoili,  shirriffs  or  other  officers,  hut  did  in- 
tertaine  those  that  wer  nottor  rebells  in  liia 
liouse   and    8i?nico,  and  particularlie  ■  — 


Mitchell,  nephew  or  cousin  to  3Ir.  Jamea 
,  ,  BiUchell,  who  hade  bein  execut  for  many  exe- 
Jiiy  lord  Halton,  presented  to  !iis  -Majesty  I  y  !  crable  treasons  againcst  his  ni^jestie,  an<l  who 
the  city  of  Kdinburgh.  In  private,  CharU's  I  himself  was  in  the  late  rebellion  in  a.d.  1666, 
acknowledged  that  mi;ny  detestable  things  had  j  and  Andrew  M*Clarkin,  whom  he  keopt  in  hia 
been  done  by  Lauderdale  against  the  Scots,  |  o>vn  house  and  service  elUr  he  hade  returned 
but  that  nothing  against  his  service  had  ap-  from  that  rebellion  to  which  he  hade  houndil 
penrcd ;  a  sentiment  not  less  dishonourable  than 
nalnral  to  a  sovereign,  who,  when  he  s;  i»arates  ; 
hiv  ow  n  intoi-€St  from  the  people,  Ibrgets  that  ' 
he  creates  an  interest  in  opposition  to  the  throne.  , 
Sec  4  Laing,  lo^^  edit.  lUOl.  j 


him  out ;  and  also  in  the  moneths  of 

or  ane  or  other  of  the  dayes  of  the 
samen,  the  said  John  lord  Bargany  did  pub- 

■k 

*  See  a  Note  to  vol.  10,  p.  1048. 


Ik'tlit'  TTi^iTilnin*?  thf?  prtnnT>l<?«  of  Nepthali ,  JaS 

lu.  f  all  miii'iler  fttiii 

irCiiaon^  <iri  ilAwl  would  never 

he  well  till  ii  icie^  or  ttie  present 

gtifprnttierit  uj  mc  tunrrii  wer  destroyed  m 
uotlti  (or  ilie  riation  ;  and  in  the  nionctli<}  of 
Or'"' ='"  '"*  No\*eniber  last,  lit  did  oppinlit*  d«- 
cl  L si  the  ^crcd  order  uud   function 

.,..  ^  .,  ,.jie,  Rwearinjjf  tlial  wc  would  ne^er 
m  peace  till  the  currtt*  wer  routed  out, 
pid  that  they  wer  oil  but  knaves  and  it)|;^K\f  : 
lierthmHe  the  said  John  lord  Bargany  has 
pmtniU4.'d»  and  i^  i^udiy  of  the  tr^asonaltle 
iirymes  and  otlicra  aUcne  TTiontionrd,  and  is 
actor  nirt  and  pnrt  tlieruf,  which  being  found 
lie  aiie  aasjNt.^  he  ou|rlit  to  be  punished  with 
fi^rfanlture  of  lylf,  lund  and  i^nods^  and  other 

line*  above  mentioned,  to  the  terror  and  ex- 

Dpte  of  others  to  com  mitt  the  like  hereiler. 

Perjfa>cr.^8ir  George  M*Kcu/Jc,  of  Rosc- 
haugb|  our  itoverai^i  lord'^i  Advucate. 

Procuraion  in  Defence. — Sir  George  Lock- 
hart,  sir  John  Cutiini^huine,  Mr.  Wni.  Hamil- 
ton,  1^1  r,  John  Elies,  31  r.  Robert  Stewart,  Mr 
Roderick  Mackenzie. 

Sir  George  Lockhatt^  as  pr«>courator  for  the 
defender,  craved  he  tni^ht  be  putt  to  the  know- 
ledge of  ane  assyse^  or  that  the  dyet  mig^ht  be 
deM-rted  and  he  set  at  lihcrtiet 

His  Mnf€%tle*i  Advociile  alleailges,  That  he 
cannot  l>e  ohleidi^-eU,  nor  can  he  in  duly  to  his 
inajcstie's  iiitcrciit,  putt  the  pannall  1o  the 
knowledge  of  anc  lussy^c,  bcc4iuic  he  did  not 
jfett  a  coppie  of  tU^^  first  and  «?cond  humtnondes 
of  excnlpulioo,  witlmut  which,  theli^lufthe 
vitnci^vs  sii^uiiU'd  nothin^^  bt;cau^e  it  is  the 
rcoMms  in  tlic  cxculputiun  that  inf»1i-uct»  hini 
toMhut  end  the  witne?«e*  are  adducetl,  ana 
ron<^piervi1y  by  which  he  b  only  hiistructcd 
howe  to  cast  these  wilnc^cs  with  relation  to 
thii*«e  poyiitH  for  which  (Iicv  art;  to  he  adduced ; 
and  be  tuc  elcvinlh  act  of  ute  late  aclf  of  pur* 
lifinirnt,  ic^^^^uliainj;;' the  justice  court,  it  i.s  most 
clear,  thai  Mh  lyLwlUand  e\cul]jation»  should 
he  cxccut  in  ihe  nuuie  way  and  inanutr,  and 
tue  jure  para  ttimnu 

8ir  Gcurgc  LackAari  answers,  That  tlie  oh- 

ion  proptined  be  the  kin,  ^     *  '       ;a  is  not 
in  pe ten  I  hoc  ioca  m  iin/i  ..^  but  is 

[|y  competent  apiincJit  iht  |Fi-.r  m« -n,  :ind  the 
reftMm  is  most  evident,  iM-fausc  thooi^'ii  ihe  ob- 
jirii  .n  ti**r  founilit  in  lavvc,  us  the  paunall 
hi  ueuics  ii  in  not,   \i^  it  tends  only 

to      ^  lite   pannalt  of  the  lH;ne1ill  of  ttte 

exeuipatjon,  and  whcrby  hiii  mujestie^s  aUvoeut 
han  un  pn  pidtce  nor  dii»uilvanti}^-e  ;  hot  on  the 
* '  I  he  wer  Jibic  to  uddocc  any  relevant 

pi  I   the  lybcil,  it  uootd  reinuine  un- 

|)ri;^udg4id    by  tlie  excul]ia!ionf  it  bein^  the 

*  T'  -r  piddrcatjAna  on  the  part  of  the 
i»  The  title  of  that  heieitnit  incu- 

I  Bo  io  llic  Urij^ual, 


^Sj 


A.D,  16S0,  [70 

mxtm  case  ia  lawe  as  if  the  exctilpation  hade 
not  be  in  raised  nor  ^xet*nt. 

2d.  Though  tlie  4tt«te  of  the  prcteea  conM 

adrailt  of  the  objection,  as  certftinUe  it  cannot^  " 
yet  (t  has  no  ground  fitmi  the  act  of  parliament^ 
J  and  it  is  impossible  to  infcrre  any  such  thitjfl 
from  the  act  of  partian^ent,  that  ane  pammll 
havcing  anc  just  and  relevant  defence  in  \hwe 
for  defending-  his  lyflT,  honour  and  reputrnionp^ 
and  ofTerintr  to  piH»Te  the  ^an»c  by  witnessc%| 
ni^atne^tt  whom   thcr  \h  no  law  full  objection|J 
that  such  a  defence  cane  be  repelled,  and  con-* 
set^uonllie  ane  innocent  man  condemned^  and 
the  true  import  and  sense  of  tlie  net  of  parlia* 
mentis  only  thiii,  that  w  her  a  panndl  thinki' 
titt  to  raise  a  Jiummond!4  of  exculpation,  anil  ^ 
to  have  the  benefitt  of  dilltgenccs,  in  ease  hif' 
witnesses  doe  not  cotnpcir  \u  that  case,  he 
most  obsene  the  foriualit)  of  the  act  of  parlia- j 
meut^  but  w  hi^r  the  panu.dl  will  uud«^ri(f>e  the 
ha^iirtl  of  a  try  all,  and  subject  hifl  inuocencr 
to  ane  assv?»e,  w  hilhcr  the  w  ilnessc^  he  cits  foL 
provcing"  fiis  defence  comj>cir  or  not,  or  woulj 
olfer  to  (irove  hi*i  defrncc,  either  be  his  jtidcfei 
or  he  members  of  the  impie<;t,  or  any  other 
persons  present,  it  ix  tlicr  thi*  irrefrattuSle  opt-, 
nion  of  all  biwyers^,  and  practise  of  utl  ciinimalt 
tribunalU  in  the  world,  tliat  such  a  defence  and 
probation  cannot  be  repelled,  and  thereby  ani 
itmocent  man  condcimird,  and  \^  hie h  ii6  suit 
able  and  consonant  to  the  practise  of  the  bird 
of  justiciarie,  ther  bdiiig-  nothiUi^'  more  ordi- 
narit'  even  nince  the  act  of  pailiamcnt,  then  to 
sustinnc  relevant  defenctiti  pro[ioued  prr  modm 
except lonh,  and  noi pcj-  modttm  ucttvnts^  jir  th 
nature  of  evculpations  are  ;  and  the  acl  of  pap 
tiament  as  to  the  poynl  of  allowing  i^unimondi 
of  exculpation  to  pail  null  ^  being  mtroduceil  id 
ther  favours^  cannot  b*."  detorted  lo  ther  preja« 
dice,  es(>cciaVlic  lo  prejudi»;ii  them  of  the  lK'n<2-i^ 
lilt  of  the  lawe  of  nature,  and  nations  delences 
l>ein|>  (/c;w;c  na^ur^,  and  most  pn)perlie,  and 
of  ther  o VI n  nature  proponablc  be  way  of  ex- 
ception, and  as  the  pannall  hunddieconccaveii 
the  pounds  ftbo\o    mentioned  to  be  foundit 
upon  the  clear  principles  of  lawc,  so  lo  con- 
vince tfie  lord'*  of  justiciarie  hovve  mnieeesiiaryJ 
this  debate  is,  it   is  o^ercd  to  l»c  ni'ovcn  by  J 
William  Ghvcr,  the  pursevanlS  outh.  that  he 
delyvcrcd  a  list  of  Ihe  wilnessen  to  my  lord 
adiocat,   and  whicli  docs  fuUie  saiisfic  the  act 
of  parliament,    which  does   not  reqnyre  the 
«unvmonds  of  c.vculpuiton  to  Ih*  exccnt,  but 
only  thul  a  list  of  the  witnessi's  be  cfivcn  ;  and 
this  the  paunalt  pmpons  tu  thiselfoel,  that  if 
he  think  tilt,  he  m:iy  have  the  full  l»cncfitt  antl 
privilepfc  «d' his  exculpftlem  in  case  any  of  the 
materhkll  wiln»*s*e«  for  pro^einaf  Ihend'  hi-  ah- 
sent ;  lykea.s  the  exculpation  ujw  produced  the 
last  dnVf  and  pubhctlte  read,  and   bear'*  no 
warrauil  tor  gmnij  a  coppie  of  the  rea^utp 
thcrof  to  my  lord  a<tvocat. 

Ills  Mil  Hi  tics  JJrot<^if  replyes.  That  asto 
the  t  '  ' *     '  n J 

the  n 

IS  sxiost  compytcnt  hut  liKtf^  «mcc  he  wats  tlicrq- 


n^ 


32  CHARLES  tl.        Procee£ngs  against  Jehn,  Lard  Bargeny.        [71 


by  in  hon& 
dyet  being 

•0,  but  he  ^  ^ 

ignorance  howe  to  manaire  the  pruces,  for  his  |  cutt  off  a  pannall  from  a  just  det'euce  and  wit- 
majestic  and  tlie  kingdomes  interest,  in  suae  I  nesses,  because  he  wanted  aiie  exculpation, 
fare,  as  he  could  not  knowc  which  way  to  find  |  and  as  the  justices  have  verie  otlen,  and  veiie 
out  the  strentfth  of  liis  own  probation,  not    justlic  allowed  ane  new  dyet,  to  ane  pannallj^ 


knowein^  howe  his  probation  might  be  eleidit 
by  the  exculpation,  and  tliough  he  gott  a  list 
of  the  witnesses,  yet  he  0(ipoQ8  expresslie  the 
act  of  parliament,  which  paralclls  the  sum- 
monds  and  the  exculpation,  and  therfor  as  upon 
the  whole  matter,  it  would  have  bein  a  verie  | 

rd  preliminarie  defence  to  the  pannall,  why 
c*ould  not  goe  to  the  knowledge  of  ane  in- 
queist;  that  he  gott  not  ane  coppie  of  the 
lybell,  and  that  he  hade  gott  it,  but  ther  is  no 
execution  againest  hiui,  or  that  he  gott  not  :^ie 
list  of  the  Witnesses,  subscribed  by  the  advocat, 
as  it  wouUl  be  tor  the  advocat  that  he  gott 
not  a  list  subscrybcil  be  the  pannall,  because 
upon  either  sydc  this  is  the  only  check  to 
koowe  what  true  %vitnesscs  wor  trulie  given 
in  list,  so  ought  this  to  be  a  sufficient  prelimi- 
narie defence  for  his  majestic,  who,  without 
this,  could  not  knowe  what  was  the  import  or 
strength  of  his  own  probation  as  said  is. 

As  to  the  second,  his  iMiyosties  Advocat  ac- 
knowleilges,  that  Ijcfore  th<?  late  reafulation  of 
thejustice  court  a  pannall  might  have  at  the     lord  (Jochran,  and  to  sir  John  Cochran,*  who 


whcr  his  exculpation  was  not  deulie  raised,  if 
his  was  proposed  before :  the  proces  was  al- 
tered upon  as  here,  so  it  wer  as  great  injostioe 
and  cruelty  to  the  common  and  publict  interest,  * 
not  to  sustaine  Uiis  as  a  preliminarie  defence, 
in  favours  of  his  majestic,  and  would  in  the 
event,  upon  the  paritie  of  reason,  prove  greet 
cruehie  to  the  people,  since  they  behoov^  to  , 
gctt  the  same  measure;  wheras  in  equities 
fair  and  eouall  tryall,  and  what  may  tend 
therto,  is  ttie  common  interest  of  both  and  of 
each  apairt. 

His  Mitj€itie'$  Advocat  adds,  that  the  ]mg 
having  doue  exact  dillig^ence,  and  returns  of 
the  dilligence  having  bein  showen  to  the  jus- 
tices againest  witnesses  which  are  knowen  to 
be  necessary ;  the  dyet  ought  to  be  continued, 
especittllie  seeing  Craige,  a  witness,  coining  in 
upon  a  warrand  fmm  the  justices,  he  was  ap«. 
urehendit  in  his  way  by  Alexander  Crawfura, 
balyic  dcput,of  Cuniughamc,  deput  to  the  lord 
IV]ont<romet'ic,   who  is  bruthcr-in-Iaw   to  the 


bare  caused  cxainin  witnesses,  even  as,  and 
because  witnesses  might  have  \w'm  adduced  for 
the  kin^  at  that  tyme,  without  giving  them  in 
list  to  tiie  pannall,  and  it  wer  just  that  the  pro- 
cedor  sh«'Uld  have  bein  equal!  upon  lifith  sides, 
for  as  it  is  the  interest  of  the  pannall  that  his 


innocence  should  have  hem  dclendit,  so  it  is  the     ^^  „,^j.^  ^-^i^,    ^^J^  ,,^  ^^  ^  necessary 
much  greater  interest  ot  the  common  wealth     ^„j  jj,  knowen  to  his  majestie's  privie 
«e  cruinna  n.aneant  inipunitH  ;»  and  yet.  not-     ^j,^  ^^.^^j  ^^^^  deposition. 


withstandini::  ot  this  great  and  important  rea< 
son,  it  is  uii(U':iyul)le  that  nowe  the  king  could 
not  prove  the  rifarest  and  most  im|>or;ant 
crynic  ii.  tiie  Horld,  except  the  advocat  hade 
given  in  to  the  pannall  a  hst  of  the  witnesses 
to  1)0  adduced,  and  therfor  since  the  late  act 
iias  taken  aua\  this  just  priviledge  from  the 
kin<^  :  competent  to  him  formerlie  by  the  lawe 
of  all  nations,  and  by  as  strong  reasons  as  are 
now  alleailjj|;ed  for  tin?  pannall,  the  saiil  act  and 
article  did  jiisilie  allowc  the  king  the  same  la- 
vour  that  it  did  to  the  pnnnall  in  eqiialUng 
both  '  aci  s,  and  the  reawin  inductive  of  this 
fnoiir  cravjvd  by  the  people  did  militut  as 
stron^lii'  tor  the  king  as  lor  them,  viz.  that  it 
was  huid  that  \«itiiesse.ssli(.'Uld  he  addiired  who 
might  ha.  e  l»rin  parlies,  or  ly.  hlu  to  just  ex- 
ccjUionN,  it  l.<  .riir  iiiulrnyalde,  that  the  king 
aiid  ihe  j.niilct  interest  may  l»o  as  mucli  pre- 
judi,^d  \t\  J(-.tit)n£^  c.\i'e|rtif>n*d)le  \fitnes!»es  for 
eleMhntj  il  the  ti\me,  as  the  pannall  Uiay  be, 
hy  SnvAx  l»'.iMdlie  evposed  to  the  mearsofane 
iiiireitaiiie  a^id  mikntrvven  probation,  and  what- 
eiei-  UMkrhi  l»i:  said  in  this  case  for  securing  the 
panniH's  Ivtf,  in  tie  not  ntlinitting  a  u  itness 
vher  Iher  is  the  lea^t  hazard,  yet  there  cane 
be  no  sliaddi?ue  why  this  sho  dd  not  be  receiv- 
ed, when  tlic  itn[>ort  is  oiil^  that  by  a  delay 


are  now  u|K)n  pannall  with  the  lord  Bargany, 
the  said  Alexander  Crawford  being  advertised, 
that  Craig  was  coming  in  upon  a  securitie 
given  be  his  majestie's  Advocat,  which  be  ooo- 
temned,  and  said  he  would  take  that  on  his 
ha^eard,  and  his  majestie's  Advocat  is  content 

witness, 

counciU, 

depos 

Sir  George  Lockhart  repeitts,  and  oppons 
the  former  debate  and  the  act  of  parliament, 
and  alleadges,  that  it  wer  a  preparative  of  most 
dangerous  c()Usequenc*e  to  lay  any  such  fun- 
dcition  that  )>annalis  accused  m  criminall 
processes  should  be  prejudged  of  ther  defences, 
whatever  way  proponed,  either  bti  way  of  sum* 
uiouds  of  exculpation  or  be  way  oftxception, 
it  being  a  certaine  principle  in  lawe,  that  as  to 
defences  and  probation  nunijuam  concluditmr 
contra  reum^  aiid  that  ther  defences  may  be . 
proponed  at  any  tyme  befor  encloseing  of  the 
assyse,  and  ther  is  not  the  least  collor  from  the 
act  of  parliament  to  tyethe  pannalls,  to  propone 
all  ther  detieuces  by  way  of  exculpaiion.  As 
to  the  second,  the  pannall  repeiits  and  oppons 
the  nature  of  cnunnall  pnK'csses,  wherin  tlie 
flyets  are  peremptor,  s|ieciallie  u|>on  the  part 
of  the  accuser,  and  all  that  ever  was  allowed 
was  in  case  the  witnesses  did  not  appeirat  the 
first  d\  ctto  grant  a  farder  dilligence,  and  which 
aceonlinglic  has  l>ein  indulsred,  and  the 
lords  of  justiciary,  that  some  of  the  witnesses 
wer  formerlie  ahicnt,  ilid   continue  the  dyet 


*  ISec  his  Case  in  this  Collection,  vol.  1% 
p.  989. 


r 


till  t1i)«  ^ty,  uitl  tberfor  lii>i  mAje^ttu*i  ail- 
%ovatl  oiijyftit  to  have  conw  lullie  instructed  noU 
I  Di>  prt'teuce  of  tlie  ahsente  oi  any  oi' the  wit- 
I  BMR9  oa^l  in  justice  to  b^  any  j^fround  Tar 
^^aew  pfOfOf  Atioiis,  >Mid  to  keef>  tt)e[*&uualU  wlin 
^^b  wtw  reiuUe  «t  tbe  bare,  to  subject  \m  inoo- 
^^Hhici^'  to  the  iitrit:tc«(it  tiiquirie  mid  tryall  uucter 
'      1^  iod  ittiputatinti   i»f  fet*  hyt*  and  at- 

li  .  nKf*i,  and  to  cootintti!  Liiii  in  wurd 

dtcr  tyvf^  tiionethii  imjtrlsuiiment,  and  ettcr  he 
has  bein  at  rxtniordinury  expense  und  trouble 
tocite  tbrescore  tfn  \%\  Ik  his  e\cu1pa- 

tion^  nii>sMil  ibem  i'riM  y»  and  iriiom 

it  b  iniftosMble  tor  ttii*  |i^ijuiii  to  bnn^  still 
lien.'  to  aitcbd  iiDccrtaiue  dyeta  at'cnnunall  pro- 
€«*»**»»  and  riM  '  -^  ..  f  -  -  nisidertd  the  i:uce  ol' 
puiuiJiilt^  i^H  t  ouviciion,  and  a&  it 

were  iuipo&b.  ,    ,   .  ,.  ,.„,,. .^Jl  t4)  pretend  or  have 
allowed  any  tknlar  dili^eure  tor  producring* 
hia  witnesa  in  une  exculpation,  ho  iber  in  tare 
lf«arf  reaaOD  lo  altuv^'e  pruro^ations  ol'ilyets  in 
lafonr»  *>f  accusers,  aud  as  to  Ibe  pretoncc  tliut 
one  of  the  maieriall  witnesi^ey  f  i;t»  bein  deti^iined 
by  the  bttlyie  d<*pu(,  of  Cuniitgbame,   it  is  ab- 
soiiitlie  dcnyed,   and  it  cannot  iu  tbc   least  be 
|ire^arucdf    that    any    person    cloathed    with 
AUthoritic  tlnn^t  have  advci»lured  or  prexMined 
10  slope  or  liJuder  any  witnei^sc^s  ubo  \ier  cited 
for    his    tnajcMie^ii    intereisl  and    ser^ice^    ^rt 
tliougb  any  HUcb  I h in y^  could  be  (jUiilifitHl^  it  is 
not  in  tbc   Ipust   reJeviiitt.  itntes»e  it   cuuld  be 
made  appeir  that  tbe   p»inhull  hnde  accession 
tiicrto^  wliich  tsubfiulutehe  refused  ;  und  on  the 
contniir,  tbe  pannuH  an<l  \m  friends  bave  u^ed 
ail  indenvour^  to  brin^   tliiii  matter  to  a  trvull  ; 
it  beidi;   txinH^ribuM)    tiard    ibnt   be   shouhl 
continue    in   tMipri>u»niiu-nt,    and     under  tbe 
fitmini:  Hod   intpmuLton   of  mi  bye  crirurs  upon 
pretence  *d  the  ubiruce  of  \f itncn^e^,  and  an- 
pc<litiMtibi  *d  tho»  kiud  may  Ije  nuU   obtnidit, 
aud  tberet'or  the   ptt»itinM    rrave**  ihe  beniHt  oj' 
1 1 V  iohdde  pi^eedor  ul 
'cat  having- ^ottal- 
•iires  biHtf  imd  the 
I  milt  olp  an4l  if  the 
sucli  nialver^arion 
udvoeat  by  tbe  se* 
-,.  .,,v. »  prevf'ttt  tbe  dunffer 
i'S^  iind  bti!i  iiiiijextteH  interest 
iin-  dyet  wcr  de!<ei'led,  sinee 
utiieieiit  ground  lo  in- 
it  for  any  of  tbecryuies 
lilirlJedf   tt   tv    but  uinitlutii  tib  inttuniia,   and 
«afinot  preju4ij,::Ct  and  tbe  punnuU  i:^  a  pei'son  ot' 
it  rhiiriicler  and  iptuiitie,  and  of  that  eouf^ide- 
jion,  a»i  t<i  foriouii,  that  tber  is  no  fear  he  will 
Ittthdru^ve  himtielf. 

The  lonJn  m  reipect  that  his  majeiitie^s  ad- 
V' '  woiiie  of  hi!<  mulerial   vrilncsfces, 

li*  hu^  tbai   he    bu*(  used  all  pos»iUe 

dilir^i    11    u»r    adducein^   i'  I   alw  iit 

reaptrct  that  the  pannaU  bail-  A  to  jfive 


'f?«  SFJ"  f^w^Wr 


'  of  them  on 

and  ttie  v\  1 

L  of  three  bij 


liivie;&iiii  ju 
thn»  courts  d 
n    ' 

b 
as 

Ot 

C.! 

il 


ad'. 

hv.  , 

iiW  thcst^ond   i>i 

Mne  the  aasyierb 


■  ^t  i*,,,..i.i.kj,  and  a 
i'§  b>r  pioveuig"  of 
eontinoo  lli«»  t\yrt 
iune  nixt,  and  or* 

I  utdiat  lyinei  i^ch 


^'^  ^f^ine  of  ane  thcroaand  merlca, 
yU  of  tbem,  under tb e  paioa 

I      Uifit    ftluje^iiica  Advoeat   takes  itiiiirunieiil 
I  upon  the  lord   Straibuavcr,  tlie  h>rd   Coijif.iiijl 

1  ail-  John  Cochran, Baly  ie,  of  L^  i 

I  Ketmeily,  of  Ciilzean,  and'lla%id  D  1 

I  brother  to  BI^Kany,  tber  entering^  the  |»4nuaU 
%vith  the  lord  Bargany* 

l^thJune,  1680. 
Jut  run  J 
John  lord  Bargany, 

Indyteil  and  accused  for  the  eryme  of  trea* 
fion,    sedition    aud  others   mentioned  in    hit 
diltay,  which  i^  reconlit  in   the  lunfks  of  ad* 
jodtnal  upon  tbe  siCxteint  of  March  tai*t ;    as 
also  indyted  and  at^cu&cd  for  that,  upon  ane  of 
other  of  the  dnyes  of  May,  June,  July,  Aa- 
guul  or  September,  he  hearirii^  that  his  grac 
the  late  archbJ5»hop  of  St.  Andrew  's  wm  mur* 
dered,  be  said  that  it  was  w  ell  or  happie,  for  he 
was  a  ^oat  enemy  to  tbe  caute  of  God,  and 
bis  people  or  thekirkof  Chrisf,  orsonie  such 
words  ;  lykas  he,  or  f»omc  by  btscouHitand,  or 
whom  he  r^itihabitcM},  did  orfer  armes  it^  Jame 
Kennedy  to  goe  to  the  late  rebellion,  at  lea 
he  wrcs  offered  armes   in  tbe  said   lord   Bar-  ' 
gauy'i*   h«>use  for  that  effect, 

Penewers — 8tr  Georg-e  M'Kenzie,  of  I 
lianght  our  S'lveraigne  lord's  Advocat* 

Frvcurtttori^  ut  ante, 

Mr.  Willwm  Hwftilfoun^  Advocat  as  pro* 
eouiutor  h»r  the  lord  Utiivany,  prmlnced  in 
presence  of  the  sarrh  lords,  ane  at^t  of  his  ma- 
jt^iie^j*  priTK'  council*  vibeiof  the  tenor  fol* 
|otv#*:  **  i.dinburgli,  ibe  tbirtl  of  j!H»e,  lOBO;^ 

♦  **  rhe  kniiii  «  Letter,  upon  which  tbii 
pnicfxjs  fs  stop|>ed,  bears,  *  That   be   hud   re* 

*  ceivetl  a  puuoii  from  ttie  lonl  Hiir^.^env,  re* 

*  presenting  Uis  \  irher*a loyalty  and  suiTerin^i^! 

*  aBscMtiu^  his  innoc<-orr  of  th^  crimes  he  is  in* 
^  «l<cted  for,  and  attebini!^  Uoil  thereupon,  and< 
'  his  niaJ4'sty  itemn  unwiltiui^,  he,  or  any  ttub* 

*  jert  should  r*M?eive  prejudice  by  loiij^  iuipri* 

*  sonmeut,  until  there  u}»pear  etident  proofs  ol 

*  their  |;;iwh»  retpnres  him  to  be  liberate,  uncfcr' 

*  fiurhcietil  cuutmn  to  appvur  in  onler  to  trial, 
^  j1  hereafler  sufficient    piuof&t  of  bis  uuilt  be 

*  lounif*  And  that  this  letter  be  conununi* 
*"  C^ucd  lo  tbe  juitice-couit  aud  advocate.** 

*2  Wodrow,  153. 

**  March  16,  1680.    The  lord  Burjfnny  wai. 
both  tlje   1st  *Uy  of  ]Vlarcli,  and  I  his  i\»y  on 
the  pannall,  and  waa,  after  niueh  delnitc,  con- 
tinued and  sent  hack  to  tbe  castle,  on  pre 
ihal  the  advocate  wanted  Bottie  of  hh  malenal 
witiicfcws  against  him  ;     as  alvi  he  gave   li 
aonic  additional   articles,  anent  bisi  furniKhinj 
men  witli  arntes  to  tbe  later  rebellion, 

**  June  5d.   Ai  pmy  onioeill  Uml  Bar]E;fa! 
W}|«  liberated,  fintiin^  cautmn  to  appear 
calkd  uud«r  pam  of  50|00U  mcrki/* 

FofiotttiiMI* 


wbemi 


3 


75] 


33  CHARLES  II.       Proceedings  against  Alex.  Blair  and  othtrs,      [70 


the  lordi  of  his  maji«tie*s  privie  counciil,  in 
obedience  to  his  majcstie's  commands,  signi- 
fied to  them  in  a  letter,  under  his  royall  band, 
of  the  eleventh  of  May  last,  gave  ordor  and 
warrand  to  tlie  governor  of  the  castle  of  Edin- 


privie  counciil  that  he  shall  compeir  befor  the 
lords  of  counciil  whenever  they  shall  call  for 
him  in  ordor  to.  his  try  all,  as  to  those  cr}'mes 
for  which  he  stands  mdyted  befor  the  lords 
commissioners  of  Justiciary,  under  tlie  pe- 


nalty of  fyftie  thousand  inerks  Seotts  money  Uk 
caice  of  faly ie.     Extract  by  int'. 

Sic  subscribitur,    *»  WIluam  Paterson." 

The  lords  justice  generall,  justice  clerk  and 
commissioners  of  justiciarie,  in  resjiect  the 
kinff*s  Advocat  (because  of  his  majestie's  letter 
to  the  counciil  and  the  act  of  counciil  intimat- 
ing the  same  to  ther  lordships)  does  not  insist 
against  the  lord  Bargany,  therfor  deserts  the 
dyet  simpliciter,  wherupon  the  said  lord  Bar- 
gany's  procurators  above  named  asked  and 
took  instruments. 


328.  Proceedings  upon  a  Process  of  Error,*  raised  against  Alex- 
ander Blaiii  and  others,  for  the  acquittal  of  James  Dick 
and  others,  indicted  for  Treason  and  Rebellion  :  33  Charles 
11.  A.  D.  168  h  [Now  first  printed  from  the  Records  of  Jus- 
ticiary in  Edinburgh.] 

and  inviolable  practiq  of  this  kingdome,  and 
spcciallie  be  the  61th  act  8  parliament  kin^ 
James  3rd,  It  is  statut  and  ordained,  that  if 
any  of  our  subjects  choiscn  upon  the  assyse 
of  any  criminall  persons  doth  acquyt  them  bs 
temcraritie,  or  wiltullie  be  favours  or  parti- 
alitic,  they  shall  be  put  to  the  trvall  of  ane 
assyse  of  twenty  five  persons,  and  being  con* 
vict  thereof,  shall  be  punished  efter  the  formd 
of  the  auld  lawes  contained  in  the  book  of 
Uogiam  Majestatcm,  and  be  the  Uth  chap. 
1  Book  Re^.  Majcst.  the  pain  of  them  that 
comniitts  wilfull  error  upon  ane  assyse  is  de- 
claired  to  be  tinscll,  and  forfaulture  of  all  ther 
cattell  and  other  moveables,  to  be  inbrought  to 
tbe  king's  use,  imprisonment  be  the  space  of 
ane  year  and  day  at  the  least,  and  that  in  all 
tyme  coming  they  shall  tyne  the  benefitt  of 
the  law  and  of  the  land,  and  shall  incurre  the 
paine  of  infaniie,  shall  never  be  heard  as  wit- 
ness in  probation  or  in  acquytance  (or  purga- 
tion) nor  to  make  ane  oath  befor  ane  judge  nor 
in  any  other  kind  of  matter :  Nevertbelesse  it 
is  of  veritie,  that  the  saids  Alexander  Dlair^ 
■  Lewes  Johnstoun,  and  the  other  persons  above* 
named,  beinijf  in  ane  court  of  justiciary,  liolden 
within  the  'j'olhtiith  of  Edinburgh,  u|>on  the 
Itith  day  of  ]\lurch  hsi  by  past,  by  the  lorde 
justice  clerk  and  commissioners  ot  justiciary. 


CoRiA  JusTicMRLi,  S.  D.  N.  Ucgis  tenta  in 
Pretorio  Burgi  de  Edinburgh,  decimo  oc- 
tavo die  mensis  Julij,  1681,  per  honora- 
biles  viros  llitchardum  Maitland  de  Dud- 
don,  Justiciarifc  Clericum,  Robertum  Do- 
mmum  de  Nairn,  Dominos  Jacobum  Fou- 
lis  de  Colingtoun,  Da\idem  Balfour  de 
Forret,  rt  Davidem  Falconar  de  Newtoun, 
f 'Ommlssionarios  Justiciaritc  dictij  S.  D.  N . 
llegis. 

Curia  legitime  affirmata. 
Intran, 

Alfxandfr  B!air^  merchand, 

J^rucs  Johnstoun y  merchant. 

Thomas  Nohfe,  merchant. 

Captain  John  liinnhic. 

Alex.  Hot hu  elf,  of  Glencorss. 

Jo  met  Baillic,  merchant. 

Mr.  Andrew  Temple^  of  Ravilrige. 

Jowts  liaird,  of  Suucktounhall. 

Hnbat  Sandicfand^t  merchand. 

Hobcrt  Elliot  Wiifht. 

A/cr.  Ilenrj/sout  of  Nowchavcn. 

/// mts  G  ray,  < >l*  W  arics! oun . 

John  Dunuitj!,  of  Han'iestoun. 

InDYTED  and  accused,  that  whcr,  notwith- 
standing be  the  lawes  and  acts  of  parliament 

■  ■ ■■  ■    • 

*  "C)fold,  before  inclosing  the  jury,  the 
Lord  Ailvwatc  or  prosecutor  used  to  protest 
for  an  Assi/c  of  Error  at^aiust  the  Inquesf,  if 
they  assoil/icd.  [Sec  an  iustance  of  such  a 
Protest  iu  this  Collection,  vol.  10,  p.  790. 
Sec,  also,  vol.  10,  p.  855.]  This  Great  Assize, 
as  it  was  called,  consisted  of  twenty  five  noble 
persons,  though  alWrwards,  in  practice,  landed 
men  were  sastained :  [Act  of  Sederunt,  7th 
June,  1591]  who  were  to  inquire,  if  the  jurors 
were  Gfiiilty  of  irilful  error,  in  their  verdict ; 
and  the  DiuuihaieQt  was  escheat  of  moveabla;. 


infamy,  and  one  year's  imprisonment.  [Iteg. 
Maj.  I.  1,  c.  14,  ratified  purl.  1475,  c.  63.1 
But  the  pannel,  who  was  ac({uitted,  remained 
so,  and  couUl  not  be  brought  upon  a  new  trial. 
Assizes  of  error  were  justly  complained  of  as  a 
grievance  at  the  revolution,  and  are  now  obso- 
lete. By  such  assizes,  persons  who  attended 
trials  as  jurors,  were  greatly  put  in  fear  of  beioff 
punished,  instead  of  being  rewarded  tor  their 
trouble,  and  the  sulijects  were  unsecure  in  their 
lives  and  liberties,  by  the  prosecutors,  in  many 
casesi  threatning  the  juiy  with  an  Asuze.  St 


^rcctis  0f  Error, 

dioi^n.  recfAveil*  sworne  mid  atliiittteil  u|i«]i 
%h'  f  Willtani  Dick,  in  Liintrk,  Janie* 

I'  '  jlm  HunrLIe  ihcr^  Tbo.  Hinsful- 

wotHl  rljgr,  llu((li  fSouienatU,  o(  Urnil*,  Jaiiitrs 


Mrror  Itihty  "    f  thciiaunelby  their  ver* 

dtct;  and,    i  i^  lhi^)»c   a;;!>ize€,  sucb 

fears  arc  fv..  ,,v...  au«l  people*  riglitsi  and 
liberties  are  iI^Uverc<l  fVmti  luch  danger." 
Lombmrrs  **  Ponu  uf  I'll »ce?!s  More  the  Court 
of  Juaiciary  in  Scotbnd/^  &cv.  p.  Ud|  edition 
0^1752. 

In  tbe  "  Acts  and  Orders  of  the  Meeting'  of 
the  Eslftte*   of  tbe  King^dom   of  8t'otlaml," 
ActlStb,  April  13,  1689,  entitted,  **  The  arti- 
cle of  erifrancrg  repre*«;cnled  liy  Ibe  vetiit*^** 
of  ^  iSemlnnd,  to  tbu*  king's  most 

ex  .  to  be  redre«"jL*<J  to   parUa- 

tnent,    uu^  .>m  repR'jsentalioti  is»  '*  I  hit  Assizes 
of  Error  are  a  irrievance,  noil  ihni  juricb  be 
considered  b-   ■     '  •    '     "   t  Idonottind 

way  pavhdMii  ist  ifie  Assise 

of*Error,  s<»  ii...  ....  ....,......,.i  ^jj^riirs  to  rest 

upon  desuetude  corroborated  hy  that  rej>ro- 
traition. 

*•  The  Asjiize/'  ms  M^Kenzie  (Criminals 
part  2,  tit.  «3,  fee  5,)  **  is  either  an  ordinary, 
or  ^eat  aasize.  The  g^reat  assize  is  thdt 
^thereby  an  ordinary  is  tried,  if  they  do  wrorij*", 
Mid  I  Itiid   aocne  foundation   for   tbir    terms* 

•  par  la  cuslume  de  LaDg^uinais,  act  4,  et  deia 

•  llochaJ,  art.  1,  la  grand  Assise  est  dtisenpshal, 

*  la  petit  du  juge  prevestal/  An  «irdinary 
•4eii*e  wfe»  lo  consist  of  tiAeen  pei'snns,  but 
tbev  ntivr  cooaist  of  more,  or  fewer,  if  the 
ntinil>er  fie  unequal;  and  thus,  the  penult  of 
Juiiij  101 4,  Ronald  was  Irird,  and  CHntict  for 
«]iim]cmbenng'  Donaldson,  by  an  hs^'itl*^  of  thir- 
leen  peraons.  The  reniion  why  the  assize 
tnust  be  imc«|ua1  in  number,  is,  lest  by  equality 
of  voles,  affairs  be  not  terminated  and  broug-ht 
to  a  sjieedy  issue  :  for  which  cause  likewise, 
lib.  2.  iiig.  Maj.  cap.  5,  and  by  the  87th  act 
a  p*rL  king  James    l»  it  b  appointed,  *  That 

*  iiHfiter»  flibouid  be  apjjointed  in  an  unequal 
^  iinmber,*  and  yet  I  lind,  that  in  the  civil 
brieve  of  ri;fhl,  an  assize  should  consist  of 
twelve  sworn  men.*'  It  is  observaWe,  that 
II  J' '  »ys^  *♦  As  the  defender  may  «lee!ine 
*h*  be  any  reason  tbr  it,  so  they  are 
«i/vuuj ,  jiur  Hi  it  presumable,  that  any  will  be 
«o  improuK  to  eondetnn  a  man  to  ilie,  ht  plc*a.se 
oth.  ,^  M.  <ii>  %.  h.^  I.  'n^sumptton  our  law  \l\\u% 
•o  I  i*^i£i*st  fHifidenm  un* 
JUM                                A^  to  tto  A»^izt'  ol\Ermr, 

I  n  tt»id»  (iee^  *  A  Guide  to  juries 

iM*ttiu^  iVniii  their  antiquity  power  and  duty 
from  f^^  rnmmon  l^nw  nnd  St^tut^'x/  pub- 
lic I  ^  ^,  and  ibt'  -  -r  cit4*-d*) 
thu  >ii  ubvfh  1  lies  not 
in  ^Jf^O  ^i^^  ^  Iklseter- 
di<  i  J  at  the  conviei^H  iruilt 
litter  Toiinti  riMiu  Willi  at  leusi 
jurors  (viz.  wrtb  the  Iwehe  of  lb- 
iind  with  at  the  fewest  twelve  ui  ii>t  j^r^uu 
inqu«at)  but  ai  Ua^\kiQi  tays  (Pl«ai  of  the 


1681.  [79 

^l^Qubanie,  of  Scorieholme,  WHlimm  Park* 
fowar,  of  Lairiml,  John  llutehteson^  of  Har 
lawe,  Luke  Grciusheills,  of  Uugfscaatle, 
othei*s,  nottoriouslie  and  manih^tlie  guilty 

Crown,  Book  1,  chapter  72,  seci.  5)»  ♦'  it 
to  be  certain,  that  po  one  ii  liable  to  aoy  p( 
cution  whatsoever,  iu  respect  of  any  ^^crdii 
(pren  by  him  iu  a  criminoi  matter,  either  U(h>i|i 
a  grand  or  petit  jnry.  For  since  the  safety  of^ 
the  innocent,  and  punti>hment  of  the  guilty^ 
doth  so  much  depend  upon  tbe  fair  and  upright 
proceeding:  of  jurors,  it  is  of  the  utmost  eotise* 
quenci'i  (hat  I  bey  should  be  as  little  as  possibly 
under  I  he  icBuence  of  any  passion  whatsoever* 
And  therefore,  U^t  ihey  e'lmuld  be  bia^^ed  witll 
I  he  f  i  ;  V  ^sed  by  a  v isjtatious  su itt 

for  Ji  J  to  their  conscience,  (th€ 

danger  ui  ^vduu  imght  easily  be  insinuatedi 
w  hrre  poirerful  men  are  warmly  enj^Mj^^ed  ifi 
a  c:msc,  thoroughly  prepossessed  of  the  Justice 
of  the  side  which  they  esrouse)  the  law  will 
not  leave  any  possibifity  for  a  prosecution  of 
this  kind. 

^^  It  IS  true  indeed,  the  jurors  were  for^nerl^f 
somvtiuH's  cjueslioned  in  the  Htur-rh amber,  for 
their  pailiahly  in  dnding  a  manifest  oHcndof 
not  guilty  i  kut  this  was  always  thoiighi  a 
very  j^eat  grievance  ;  and  surely  aj  the  law  is 
iiovv  itctlled  by  Bnshers  case,  there  is  no  kind 
of  proceeding  ag^aiti&t  jurors  in  respect  of  their 
verdicts  in  criminal  matters  allowed  of  at  thf# 
day.  As  to  the  objection,  that  an  attaint  lie*. 
against  a  jury  lor  a  latse  verdict  *'  iu  a  civil 
*■  cause,*  and  that  there  is  as  much  reason  to 
allow  of  it  in  a  crimii»al  one,  it  may  be  an- 
swered, that  in  an  aUaint,  a  man's  properly  it 
only  bn»u>jVil  into  question  a  second  time,  and 
not  [its  liberty  or  life  ;  and  also  it  may  be  ge- 
neruUy  presumed,  that  a  jury  is  likely  to  bet 
equally  inliuenced  with  the  tear  of  an  attaint 
from  either  of  the  conteinhng  parties,  whereas 
if  any  ^ch  examinations  ot  their  proceedinga 
were  allowed  iu  criminal  causes  they  might  lid 
often  in  ^reat  danger  of  one  sidci  by  incurring 
the  resentment  ol  a  powerful  prosecutor,  and 
provoking  liim  to  call  tlieir  conduct  mtoques* 
tion  fur  their  sup|K)ied  partiality  ;  but  they 
could  have  iittle  to  fear  from  an  injured  crimi« 
nal  who  \vould  seldom  be  in  ciroumstaoccs  to 
niike  his  protiecution  formidable.'* 

8o,  too,  ftlr.  Barrin^^ton  (t>b«.  on  Westntiu- 
ster  the  Ist,)  ^ays,  **  It  is  to  be  observed,  thai 
attaint  lay  only  in  civil  cases,  either  by  th« 
cujiiinoii  f»w  or  by  this  statute.  The  rea^u 
of  which  seems  to  have  been  grounded  ii\*on 
the  strong  presninptioh.  rliai  no  jury  wouUi 
londetnn  H  eriuiuial  <>  tbe  evidence* 

and  that  it  would  be  <  a  wiih   princi* 

pics  of  liberty*  to  pcijuit  ili.*  trn'vri,  when  il 
might  intend  oppresjijon,  to  cs^H  *n  'pitfiion* 
verdict  ofncqmUid.     liifi  foril'  >mo» 

when  a  crime  ih  prosocutcd  by  ■'  '  re* 

rwon,   and   mu    in  indict* 
I  uf  the  crown,  thj»t  thera 
I',  ir*  tiK-^ritwuvii  u?  u  grand  jury  t*  find  Ut« 
biU/' 


79]  33  CHARLES  If.    Proceedingi  against  Aiex.  BMr  and  othrs,    [80 

the  cry  mea  of  high  treason  and  rebellion,  and  wer  dcfate  at  Dutliwel -bridi^,  as  the  said 
who  wherindytea  and  accused  for  ryseing  and  i  dittay  produced  be  his  niajestie's  Advocatas  per- 
joyning-in  amies  with  the  blood ie  and  sacra-  j  sewer  therof,  against  the  tbrsaids|>erson8abo?e 
Jegious  murderers  of  tlie  late  archliishop  of  St.  [  Daiiicd,  indyted,  and  accused  judiciallio,therbyy 
Andrews,  under  the  command  of  Robert  Ham- i  of  the  crymes  forsaids  therin  contained,  in 
iltoun,  brottier  to  the  laird  of  Prestoune,  and  \  presence  of  the  lords  of  justiciary  i^ittand  in 
most  treasonablie  burning  his  m:ncstie*8  lawes  '  judgement,  in  itself  at  length  nroiiorts ;  «f\er 
and  acts  of  ]>arliament,  at  the  mafcat  croce  of!  reading  of  the  whilk  dittiiy,  the  lords  justice 
Rutlierc^Ien,  upon  the  29th  day  of  May,  1679,  !  clerk  and  commissionera  of  justiciary  being 
procUiiming  and  publishing  acts  of  ther  owne  j  ryplie,  and  at  lenth  adwised  thcrwith,  ifiind  the 
coy  ning,  drowning  oat  bonefyre8,sett  on  in  com-  samen  relevant,  and  remitteil  the  same  to  the 
memoratiou  of  his  majestie's  hap^iie  restaura-  knowledge  of  the  persons  above  named  as  ane 
tion  to  the  royall  gOTernmrntof  thiskin^dome,  assyse  thereto,  etler  pronuucing  of  the  whilk 
and  for  assaulting  a  |)artie  of  his  majestic*8  intcrloquitor,  the  saids  Alexander  Blair,  Lewes 
forces  at  Loudounhill,  under  the  command  of   Jolinstoun,and  the  other  persons  above  named. 


the  laird  of  Claverhouse,  upon  the  day 

of  June,  thereller,  killing  and  Inurdering  seve- 
ralls  of  them,  and  marching  to  the  tonn  of 
Gkisgowc,  upon  the  day  of  the  same 

moneth,  :ind  assauhing  and  attactqing  a  partie 
of  his  majestie's  forces  therin,  under  the  com- 
mand of  the  lord  Hosse  and  laird  of  Claver- 
house, and  for  marching  up  and  down  the 
countrey  tlirowe  the  shyrcs  of  Lancrk,  Aire, 
ilcnfrewe,  Dunbartonn,  and  others,  in  warlike 
and  military  poustcr,  with  ther  accomplices,  to 
tlie  number  of  ten  or  twelve  tliousaud,  robbing 
and  pilagcing  his  majestie's  gotnl  subjects, 
quartering  uiK>n  and  oppressing  them,  printing 
and  publishing  declarations  and  proclamations, 
bearuig  the  treasonal>le  grounds  of  ther  rebel- 
lion, modelling  and  furmeiug  themselves  into 
troups,  companys,  and  regiments,  nameingand 
appoynting  commanders  and  officers  over  them, 
healing  parlies  bo  drums,  sending  commis- 
sioners to  the  general!  of  his  majestie's  forces, 
requyreing  the  subvention  of  the  government 
of  the  church,  and  continuoing  in  ther  said 
desperat  and  avowed  rebellion  till  the  122nd 
day  oi'thc  said  moneth  of  Jime,  1679,  that  they 

8eo,  also,  sir  Thomas  Smith's  Commonwealth 
of  Englaiid,  book  3,  eliap.  y,  •  What  remedie 
is,  if  sentence  bee  thought  unjustly  given.'  By 
a  passage  in  Wodrow  there  is  reason  to  think 
that  Charles  the  Second  designed  to  publish  this 
trial  together  with  some  othi-rs  ;  but  whether 
such  publication  was  ever  made  I  know  not. 
Tlie  nassage  is  as  follows  : 

"  In  March  this  year,  a  letter  comes  down 
from  the  king  to  the  council,  and  one  of  the 
sameiniprt  to  the  lonis  of  justiciary,  ordering 
extraets  to  he  made  out  of  the  registers,  of  the 
trials  of  such  as  were  condemned  for  rebellion. 
The  letter  will  best  speak  for  itself. 

'*  C.  R, 

"  Right  trusty,  Sec,  Wherefts  we  have 
thought  fit  to  appoint  extracts  to  be  made  out 
of  the  books  of  adjournal  of  our  justice- court, 
of  the  trials  of  some  of  the  most  notorious  reliels, 
as  also  of  the  trial  of  John  Niven,  and  those 
persons  found  guilty  by  a  great  Assize  of 
Error,  and  likewise'of  all  papers  whatsomever 
relating  to  the  trial  of  Archibald  late  carl  of 
Argyle,  and  the  process  of  forfeiture  led  against 
Uie  end  the  sanoe  may  be  digested  and 


being  called  upon,  receaved,  sworne  and  ad« 
uiitted  upon  the  assyse  of  the  fierscns  abure 
named  fbrtr^all  ofther  guiltiness  oti  he  crymes 
above  specitit,  his  majesty's  adiocat  for  ve- 
rification and  clearing  to  mem  of  the  forsaids 
persons  ther  guiltiness,  adduced  the  witnessce 
efter  named,  viz.  againest  the  said  William 
Dick,  (Javin  Mont,  in  Lanerk,  wbode|)ons  that 
he  sawc  the  said  William  Dick  in  Lanerk  with 
therebells  in  armes,  in  or  about  Glasgowe, 
betwixt  the  first  and  twentie  second  days  of 
June,  1679,  an<l  that  he  knew  him  particularliey 
as  also  ^Irchibald  llinselwood,  in  Lanerk,  who 
depons,  that  he  sawe  the  said  William  D^ 
ryding  aut  of  the  totm  of  Lancrk,  with  annes, 
tde  tymethe  rehelis  wer  in  armes  in  the  West, 
and  likeways  William  Heaste,  in  Lanerk,  who 
depons,  that  he  sawe  the  said  William  Dick  on 
horseback  with  a  sword  al>out  him  ryding  with 
the  rebells,  and  James  Whytt,  in  Lanerk,  who 
depons  he  sawe  the  said  William  Dick,  in 
armes,  in  his  returnefrom  Both  well -bridge,  the 
day  the  rebells  wer  defate  ther,  and  for  provmg 
the  saids  Jume^  Park's  guiltiness,  adduced  the 
said  Gavin  Mont,  who  de|ion8  he  sawe  the  said 


methodized  by  Charles  Hanses  of  Gray's  Inn, 
esq.  and  publlbhed  tor  the  satisfaction  of  oar 
good  tiuhjeets  :  we  have  hereby  thought  fit,  lo  ' 
authorize  and  ref|uire  you  to  transmit  to  oar 
secretary  of  state,  to  be  delivered  to  the  said 
Charles  true  and  exact  copies  of  all  proclaroa* 
tions,  letters,  examinaiions,  confessions,  trials^ 
indictments,  declarations,  and  others,  since  tbm 
decrease  ot  our  royal  "randlather  kin<r  James  6, 
of  blessed  memory ,  thai  relate  to  public  matters, 
our  prerogative,  the  former  and  lale  rebellions, 
the  rebels  thiir  suppressiim  or  c4iption,  the 
security  of  the  pea(%  HliKher  in  church  or 
state,  or  the  ad  ancement  ot  the  interest  of  our 
bishops  and  their  ri>gular  cler^^y  in  that  our 
ancient  kingdom,  and  of  all  ititornntions,  rela- 
tions, or  petitions,  sent  to  our  |>i  ivy  councfl 
fnMU  time  to  time,  about  any  thing  of  this 
nature,  as  convrnticli*s,  insurret^titius,  ins«>len- 
cies,  or  cruelties  of  faiiaticks,  and  such  other 
pa{H.Tsof  any  public  concern,  uliich  youjudgv 
most  proper  to  Ih*  luiMishcd,  for  the  satisffac- 
tion  of  all  good  suhjtrcts  ;  which  are  to  he  al« 
tested  under  the  hand  of  our  chancellor.  Gireq^ 
at  Whitehall,  February  21,  &c. 

(<  MlDDIXTOX.** 


>r  jQoe,  1679,  and 
\  SHiilIer,  in   fla- 


|«  twcuUfi  sccoii.l 

ibe  touu  ot  li.iiiiii  :ii 

Druincluge  auil  tI  ;e, 

*n<)    ".".-♦    •1..^  ,...;,.^,     /.   Wipi. ♦of 

£4  'iie'a  ailvocale  ai!diKiti 

Juij  1    n  .iiiilioim,  ^vho^^e- 

Uuns^   ii  p  ,  of  Scorie* 

pime,  n  ,  at  Uamil- 

|M1   nntl  lliifuikuun^mtur,   betwixt  Iho   iirMt 
P  mrenh' tfffmd   <1nyt  ?  nf  June,  107 9,  aut! 

that  he  '  >e  with  tbian 

amt  \V  il  .'^TT,   ^*-bA  fit*. 

pcmii,  th4t  hi:  SilWu  tiiu- 

m  anncii  wttli   the  ril 

JtiiiCf  lo70,  *uid   Ihe  «iiiii   Jmij*     v^iumiM^ 
fiko  iif7t*ou9,  llial    he   «a^«  the  lOid   Jamr^ 
VOL.  XL 


Jftmct  Park,  in  Lunerk,  in  ftrmes  with  the  re- 
belht  betwiKt  ihc  (irijtnad  tn«rilic  sen>niltlaye3 
«f  Juiuv  16?y,  AiiiJ  that  lie  kuc^ve  hitn  (mrlJ* 
Cttbrly,  and  thr  ^iil  WiHiAin  Hea&tic,  who 
fiepotist  he  sawe  ihc  aaid  James  Fork  with  the 
rcU'JU  in  af  t  '        ,  1679*  ^vithin 

the  louii   of  '  ;ivH  \Vil|ia»ri 

Wauteito  ,    >t.:ij  u«-i>onjB,  Uiat  he 

Siiwe  tK  l^ark   in  company  with 

HP 

the   :■       1    J'^.:.    .:■    ;    ;...     .    ,,    ,..,,.       _        .■_,.._. 

adtlncoci  the  said  Guvin  Mont^  vihodepons  he 
iMwe  the  «atd  John   Biuicte,  in  Hrmes  with  the 
v^betlSi   htftHixl  the  tirsi  and  IntTilie  wcotid 
d»y*«*»*  *^""^7    1fi79,   and  thrtt  he  JcDev*chim 
pni  •  'ie,  who 

dc[  ickle,  m 

•rnit's  ^Hlii    Ibc  rthclii*  njilno  [he  touii  of  L«i- 
nerk,  id   Juiic^    1679,  and  Ukewnys  the  said 
iirchibiild   Hins^i-lwood,   who    depmis  tlmt   be 
Wkvrc  the  snid  John    Hun':klc  ];;oiiig  fruui  (he 
t<Hr-     '  '  '      ^viih  arnuSi  the  t}itie  forsuidf 

All  ,4l  Thomas   11  iuseiuood^  ad- 

duce,. ,;._    ......  V,  jlliam    iioastie»  who  dqKKifi, 

lie  sttwethe  snid  'l'lto»0*is  HiuseUvodif,  in  armew 
With  thi^  r^ltt'lliif  within  thetouiiof  Lniirrk,  in 
June  1679,  and  the  mid  Giivin  j\Ioiit,  who  de- 
^ii:i,  thai  he  sawc  the  kaid  ThoniJis  Hin!fcl< 
I  ill  arm*:»  w  iih  the  rcMK  and  knewe  hint 
iicnlarlti^ ;  atid  al^o  Kobeit  ]VI*ttbie,  in 
ocrk,  who  de]>ons,  he  gawe  the  5aid  Tho- 
mt^s  IijiiSL7iwo<Ki  \ro^f  uloiigst  With  the  rehoUs 
wad  a  biatf  iu  his  baiidf  and  likewa^esjohn 
Lindsay,  «lioc;- maker  in  Laoetki  who  dep^jns 
he  jawe  the  Kaid  Thomas  Hiuselwoiid  in  eoni- 
j>ttny  wiili  the  rebi'Us,  with  a  swoi'd,  and 
ligaincst  the  said  Hugfh  JSon»in*rTille  of  Uiir- 
rata,  his  inajesiie's  advoealk*  addurfnl  Jaiiiea 
TikI  in  liamiUtKiii,  wh"  .1.  i^.n^  that  he  sawe 
the  sfiid    llug^li  Sotum  ah  tymas  in 

arini-!*  with  tlir  il- hells  Ir  :   6rstof  June 

and  the  twentie  seeond  day   thereof  the  forsaid 
car,  and  that  he  knewe  bioi  iiarticutarhe,  and 
cr  Cleitandj  in  Laneik,   who  depous,  he 
p  the  naid  thi^h  ^HmuTvail),  cf  Urrats,  in 
(e*  with  ilie  lebtlla,  at  L4ii\erk,  Hamiltoun, 
llamiltouii-miiir,   b<?twixt    the   first  and 


A.  D.  168I 


rss 


M*(iiiharneT  in  armei,  wiUt  the  rebels,  withfn 
thelonii  of  Harnihoun*  hctwjxt  the  f  1} 

Di'wiiK-loife,  and  the  defate  at  Coth\^ 
ajid  a;,'^»ine!it  >Vilhain  Pirk,  fewer,  ci  ljiialad,i 
hin  miu^*$tie's  advoout  adituceil  Johu  AHaTi,  itfJ 
I*  M),    wUo  ^iepont?**  he    s:»wo  Williiim! 

'  I,  of  Lairfiid,  in  ni"me«  with  tlie  re- 

lrMi>,  V.  iiiiin  the  Laun  of  Ilamiitotvn,  Uol^i'Cij 
8cot,  if)  nuniiltoun«  who  depons  he  bAwc  the 
^!''''  Udliam  Park,  severall  tymts  lu  t-i)jii«-J 
with  the  rt^belfa,  at  tlie  dqH>UL!)t'tf| 
A\  betwixt  the  first  of  June  and  tin 
twentie-secoud  day  thenHtf,  ami  Johti  lUhA 
hertson,  in  Earnocb,  %*ha  dtpoik*  he  saw  t*  tlt^S 
said  VViltiiiut  Park,  fcwnr,  ofLairfad,  in  urine»1 
with  the  rcbella,  in  llamtUoun-Muir,  in  June*i 
1679,  and  ae^ineit  John  llulchiesoni  <»t  Hare- 1 
Inwe,  adduced  James  TmJ,  in  llarnihotin,  wbcil 
depons  he  sawe  the  i^aid  John  lliitchrtfsou  se«f 
vcrall  tvnies  in  ajuies  with  the  rebel  Is.  at  Ila»l 


in  Lan*  (U,  who  dt^pori^  he  nawe  thi<  Ftiid  John] 
Hutehie&'on,    in   anncs   with   the   rrhedjt^   i^i 
Joiu\  1670,  the  tyiTve  of  the  late  rebellion,  audi 
Archihdld     liin^^lwQod,     in      Lanark*     whaj 
depoDS  he  suwe  the  wud  John    HutcliieiioAl 
ryditig    with    amies  from    the    west   home- J 
wurde,  the  tyme   th<p  rebells   wcr  in  nrmesj 
and  against  ih^  «aid  Lnke  Greinshdtis,   htl* 
mjijrstie'fi   advocat,  adduced  the  said   CafiU 
Mount,  in  Lam^rk,  who  depon*;  he  sawe  hltu  Iff 
armcs  with  the  rebelU^  and  kuevie  hint  parti- j 
cularlie;  and  Andrew  Uobertson,  in  BHshiir^^ 
who  depons  be  sawe  the  said  Lnkc  Gretnsbeill^l 
in  armes,  with  two  tronpa  ol*  the  nbtUsj  a4J 
the  Hhawfdieadmttir,  on  Sundny  befor  the  bieak 
at  Botbwel-bridg^e;  The  w  bilk  wifnesses  abovi 
named,  wer  receavcd,  sv^n  "    ^I'lrfr^d  and  ad- 
mitted, in  prc!>cnce  of  th<  i^uw  com- 1 
pleaned  upon,  as?<y!iers  rec-      _         ■}  sworue  ial 
the  said  cause  for  Iryali  of  the  persons  above  | 
named,  thtr  guiltiia&b  of  the  rryme.s  alor* 
Bpecifit,  wlijcli  was  moat  clear  and  manifestpj 
ther  bcMng"  not  only  one  but  three  and  four  wit* 
uesses  deponeing  pogitive  therU|M}n,  in  respect  | 
wberof  his  majestie**  nilvocate  then  protected  ] 
for  wilful  I  error,  atrainest  them  in  case  they 
should  acquytt  or  cleuf^  the  dttfenders  abf}v« 
1  d  of  I  he  crymes  I        ^  '        '    r 
\'  ;  yet  true  it  i 
;in(iiie  named  lieinc"  *                 '  juuvrti  mhih  of  j 
eourt,  end  inclosi-d                        iii«sy4ie-hoHNej 
and  ha%i»ir  '-'"•''*                        'v-'    »"-">  *^"Pi 
poyntsof  tl  • 
ther  know  11,.     .... 
tered  at^'atne  m  court                                      4:  of  j 
the  eleiir  vcrificalion         i                            i>er-»  j 
j»on»  alMive  mimed«  llier  jj^udht  ntfeof  the  cry  met  1 
nlwve  tipecitH*,    led  and  adilnrrd  in  thrr  pre* 
s^nce,  be  the  mouth  and  jr                                  T 
the   ««:^id   Ji»m<*^  Baird,  ^d 

U'd  and  ehoibcn  bt'  tlitui,  ii;  vii 
,  wilfuU  be  favour,  paitiahtie, ' 
i lull  ii)eaiieft,ii8lolvied  tho 
kmu  l^k,  fttid  the  oth«t 


33  CHARLES  II.     ProctedmgB  again$t  Alex.  JB/tftr  and  others,      [S% 

Robert  Sandilands,  merchant. 

Robert  Eliot  Wright. 

Alexander  Henruson,  of  Newba?eD. 

Jamet  Graiff  of  WariestouD. 

John  Dundatj  of  Harriestouo. 

Indyted  and  accased  for  the  crime  of  wilfid 
error  ut  in  die  preccdente. 

James  Buird^  of  Sauchtounhall,  who  waft 
chancellor  to  the  said  assyae,  declaires,  tbal 
ther  came  but  aboni  sex  paonalls  to  his  rote, 
and  he  fand  them  guilty  according  to  his  know- 
ledge. 

His  Majettie's  Adoocaie  dedaires,  he  in 


83] 

persons  abore  named,  though  they  wer  bound 
in  lawc,  b^  oath,  and  conscience,  to  have  judg- 
ed according  to  the  depositions  of  the  witnesses 
and  probation  adduced  be  his  roajestie's  advo- 
cat,  receaved,  sirome  and  admitted  in  ther 
owne  presence,  which  is  a  most  clear,  manifest 
and  convincing  probation  of  the  persons  above 
named,  and  ilk  ane  of  them  tber  guiltines  oi 
the  crymes  above  specitit.  In  doemg  wberof, 
the  persons  above  complained  npon,  have  most 
wickedKe  committed  and  incuTRd  motft  wilful, 
manifest,  partiall,  perjorioos,  at  least  temera- 
rious error,  nyn  several!  tymes  againest  the 
light  of  thee  own  oonsidences,  and  against  the 
most  clear  prot>ation  that  ever  was  or  cane  be 
adduced  in  any  caose,  civill  or  crimmall,  in 
hye  contempt  of  his  majestic,  and  his  autho- 
ritie,  the  wliilk  being  suae  found  be  ane  assyse, 
^ey  and  ilk  ane  of  them  ought  to  be  punished 
■IB  tber  persons  and  goods,  with  the  paines 
-above  wnniten,  which  ought  to  be  inflicted 
upon  them  in  most  examplarie  maner  to  the 
terror  of  others,  to  commit  the  l^e  herefler. 

Pencwcr.— Sir  George  M'Kenzie,*  of  Rose- 
haugh,  our  Soi'ereigne  Lord's  Advocat. 

Procuratort  in  Defence, — Sir  George  Lock- 
^art,  sir  John  Cunningham. 

The  lords  in  regard  ther  was  not  a  compe- 
tent number  of  assy  sen  present,  continued  the 
dyettill  Monday  next,  and  ordaines  the  pau- 
nulls  to  find  caution  for  their  appsirance  at 
that  dyet,  and  the  assysers  present  wer  cited, 
apud  acta  to  attend  ilk  persoQ|  under  the  paine 
of  two  liundreth  merks. 

CuRif  Justiciars,  S.  D.  N.  Regis  tenta  in 
Pnetorio  Burgi  de  Edinbuigh,  25  die 
uiensis  Julii,  1681,  per  honorabiles  viros 
Kitohardum  l^Iidtlaud  deDuddop  Justi- 
ciar] urn  Clericum,  Dominos  Jacolium 
Foulis  dc  Colintonn,  Davidem  Balfour  de 
Forret,  Davidem  Fdconer  de  Newtoun,  et 
Rogerum  Hoge  de  Ilarcarssy  Commis- 
fiionarios  Justiciarice  dictii  S.  D.  N.  U(^. 

Curia  legitime  affirmata. 

Intranf 

Alexander  Blair,  merchant. 
Leu-cs  Johnstoun,  merchant* 
Thomas  Noble,  ino'chant. 
Captain  John  Binning,' 
Alexander  Bothwell,o£Gkncom^ 
James  Bailifie,  merchant. 
Mr.  Andrew  Temple,  of  Ravilrige. 
James  Baird,  of  Saucbtounhall. 


*  lu  sir  G.  N«Kenzie's  treatise  on  the  Cri- 
minal Law  of  Scotland,  upon  several  occAnions 
assizere  are  mentioned,  slightingly,  if  not  con- 
teropUiousJy ;  and  the  same  work  exhibits  a 
atrong  bias  in  the  mind  of  the  author,  in  ta- 
Tour  of  the  authority  and  power  of  judges, 
rather  tlian  those  of  assysers.  Of  his  treat- 
Aent  of  the  latter,  see  two  mstanoes  in  this 
CoUwIioUi  vol.  8, 8«3|  Tol.  10»  p.  9T1«  and  986. 


primo  loco,  affainst  Alexander  Blair,  AleaKander 
Bothwel,  John  Binning,  James  Bailtie,  Mr. 
Andrew  Temple,  and  John  Ihindas,  of  fiar^ 
viestoun,  and  James  Gray,  of  Wariestoun. 

Sir  Ge&rge  Lockhart,  for  the  pannalls  aU 
leadges,  that  they  cannot  he  put  to  the  know^ 
ledge  of  ane  assyse  becaoao  the  process  itidf 
being  a  prooess  of  error,  and  that  the  pamalli 
were  *  temere  jurantes  super  assisam,'  as  it » 
extraordinar  and  vrithont  any  precedent  npoa 
record,  so  it  is  only  foundit  upon  the  63  act,  6 
iMurliaiuent  king  James  S,  and  theifo  canm* 
be  farder  sustained  then  in  the  precise  termci 
and  cases  mentioned  in  that  act  of  parliament  ( 
and  the  expresse  case  stated  in  that  act  b 
only  wher  mdyted  persons  are  showen  befhr 
the  assyse  in  the  accusation  of  a  trespassor 
nottoraiid  manifestknowledge  of  the  trespassor 
being  bade  it  happins  the  persons  that  passe  tm 
the  assyse  wiUnUie  be  favours  or  partial  meanek 
to  acqu^tt,  that  such  assysers  neing  convMA 
de  temerario  juroj/iento  may  be  persewed  as 
guilty  of  error,  but  that  act  of  parliament  doe9 
not  in  the  lest  conseriie  the  case  of  these  paa^ 
nails ;  in  respect  it  cannot  be  subsumed  thai 
the  persons  iudyted  wer  showen  and  prodooed 
to  them,  the  pannals  then  called  befor  the  fi^ 
syse  not  being  sisted,  but  the  prooedor  ody 
against  them  as  absents  which  albeit  warrand* 
ed  by  the  late  act  of  parliament,  in  suae  fart 
as  concerns  the  legalitie  of  that  procedor  •• 
to  any  sentence,  cooderoniiigthem,  orfcr&ul* 
ture,  or  contiscation  of  ther  estates,  yet  doea  H 
not  at  all  concerne  the  case  of  the  act  of  par* 
liament  king  James  3,  which  m  tlie  clear  aisj 
distinct  woras  therof,  proceeds  and  reqnyre$ 
that  the  persons  indytca  should  be  shpiren  and 
prodnceif,  and  by  the  common  principles  of 
law  in  materia  criminale,  ther  cane  be  no  ex« 
tention  of  lawcsand  acts  of  parliament '  de  casa 

*  iu  casum  etiam  ex  paritate  et  identitate  ra- 

*  tiouis,'  although  ther  is  no  paritie  or  identitip 
in  the  case  wher  pannalls  are  absent,  and  wher 
they  are  present ;  in  respect  wher  pannalls  ar» 
present,  assizers  have  oportunitysof  mora&U^ 
more  evident,  and  convincing  convictions,  by 
the  cariage,  answers  and  composure,  and  inte- 
rogations,  which  in  ther  own  presence  thew 
may  hear  made,  or  may  make,  to  the  pannalls 
themselves,  and  therfor  this  case  being  of  so 
high  and  extraordinary  importance  as  to  the 
lives  and  fortouns  of  his  miyestie^s 
and  whcmpon  all  assyzen  may  be 


«6] 


ijpcw  «  Pr4fC€99  of  Errc^ 


A«D.  V6tf]* 


[86 


question  by  great  nmyvie%,  ftnd  these  great 
assyses  dra^ven  in  qu<?slion  agAitie  beioiT  a 
imrtinnierit;  llji*  prucoe  uf  crmr  not  be\u\r  in 
ibe  leifues  of  the  act  of  |mrliainc:ut  kin^''  Jiuucs 
3,  wbtuujHiu  it  Ls  foumJit,  cannot  be  susuitiieiJ, 
or  the  pannnls  put  to  the  kaovvletlge  of  uiie 
Bsty%c  tlierujH)!!. 

2,  Although  the  c«se  wer  in  lite  exprcsse 
femics  of  the  act  of  parliament,  tiiat  the  pa«- 
nails  hado  bein  sisted  luid  produced,  the  con* 
frair  wherof  ia  ooitor  arid  known  to  tlie  lordis  of 
jtisticiarie^  ^el  no  pcTbon  cau  bo  fH'rse^red  as 
guilik  of  perjurie,  and  couimitting^  wilfull 
error,  ei^cept  wlisr  the?  are  relevant  aitd  special! 
quali^cali4m8  cofidesceaded  upon  and  offered 
lo  be  proren,  that  the  assy  sera  did  assolyic  the 
trespassors  be  favour  or  partial itie,  and  the 
reaaoD  t»  most  evident,  because  the  assysc  bein^ 
hj  the  lawcs  and  inviolable  practice  of  this 
fijnmlom,  the  sole  and  absolute  judges  of  the 
|ifoQation  according  as  they  shall  he  convinced 
tberaf,  iQ  ther  conscieooes,  and  who  in  the  ua* 
tufe  of  their  office  and  duty^  ha%e  it  in  Lher 

?ower  to  con«$ider  *■  momcutuni  probationes 
<}liantum  iidei  e^it  te^tibus  adhibenduin,'  it  is 
noway es  sufficient  to  persewe  ane  assjse '  super 
*  hoc  aolo  medio,'  thai  tber  was  a  probation 
adduced,  hui  it  most  be  made  appt  ir  that  the 
ijisyse  hade  no  re^aird  to  the  liaid  }>rohation 
II Don  other  extrinsic  grounds  and  consideration 
Of  parltaliUe  and  favour,  such  as  brybrie,  cor- 
ruption «nd  other  qualitlcatioiiK  of  that  kind, 
but  if  no  iiuch  favour^  qualifications  or  g'vatili* 
CAtiouscane  be  coodescendit  on  and  quahlitil^  so 
as  iLe  assyse  have  proceefht  upon  the  sinjjjle 


ric  for  principles  paasen  for  a  christian  duty  and 
h«*roic  devotion,  holU  in  this  and  our  n«;i^hboiir 
nati^m,  uhichas  it  mnkestliedebateinir  idiliese 
two  [•      I       '     '      .  unnccc4J>ary,  t^  \ 

mall'  »  clear*  yet  foi  . 

sako,  Ins  iiuijout-h  dtlvocat  answers: 

Tothetin$t  the  act  is  op poned,  i  I 

who  arc  guilty  '^'  '  "  -  -ojuramcui.'^.^.t.^i.i^i 
distinclion)  tol  •  1^  vihich  if  it  should 

hohl   inanyca-.-, il  much   morr  hold   In 

treason,  and  against  persons  who  ar  v 

as  tbe\  dare  not  appcir,  and  ihojn  y 

consider  what  wise  men  our  lawyers  had  ijcm, 
if  they  hade  punished  these  who  hade  a.vsolytd 
a  man  for  petiie  theitt,  or  mutilation,  and  yet 
would  liave  allowed  inipunltie  to  oppiu  Rbclls 

{►erststing  iu  retwHiou,  nor  does  tlie  words 
bundit  upon  in  the  act  of  purliament  any  \^ay 
weaken  tiie  tybell  (those  words  shoucn  to  ibo 
aasyse)  meaning  only  that  wher  pcnKHJS  arc 
designed  and  spccJfieil  to  the  assyse  in  a  ly  bcIT, 
and  not  vi  tier  tlie  iKMlies  lov  pruducetl,  for  1  may 
show  e  a  man  to  be  a  rebeU,  and  ^et  not  showe 
hm  persOD  to  be  at  the  hare,  and  it  is  verie 
eftraing  to  thiidc  that  rcbells  either  to  he  foHUult 
in  absence  or  efter  death,  or  if  the  la  we  should 
yel  otxlatne  other  })erson8  to  be  forlault  m  ab- 
sence (as  probahlie  they  sbortUe  will)  ther  being 
greater  piohabiliiie  of  assoiyeing  these  be  par- 
liahtie  then  any  others,  because  of  the  identitie 
of  priuciplesi  law  should  not  have  protidcd  a 
remetly  wtier  ther  was  greatest  temptatiou  and 
hazard, 

'id.  The  act  of  parliament  ordaining  persont 
to  be   forfjulied  in  absencei  appoyuts  the  pro- 


oonviction  of  ther  onn  reason  and  consciences,  i  bntioti  to  be  led  againiit  them  as  if  they  wer 
no  such  procedor  cane   fall  under  the  act  of     •■-^—•^  '—»  *u««*\.-  .i.,.„:-,  ..„  ,u. *:.,.>#.«.*  *^  k«. 
]»arharoent  to  ibund  against  thein  ane  process 
of  error,  and  that  lliey  are  *  temcre  juraute« 
*  fuper  oMisam/ 

Hts  Mmeniics  Advocate  replies  lo  the  firii, 
That  the  law  having  forsein  the  great  arbie- 
trariencs  and  villainies  that  might  be  com- 
mitted by  cleogiojf  persons  guilty,  wherby 
not  only  tlieprmcipUs  of  govcrnnieut  but  of 
human  socictie  would  be  disoKcd,  in  re*(i/ecl 
that  the  grt^a-test  malefactors  might  exfieot 
iuipunitie,  r.htrcby  not  only  government  but  all 
focuritie  wouhl  be  cast  louse,  and  every  privut 
omn  luive  power  to  reuiitt  and  indVinaific 
crymes,  though  never  so  great  and  horrid, 
they  therfor  made  this  excellent  and  clear  law 
which  tloes  very  deartie  ordaine  all  '  tern  ere 
*yuraiit«s  super  assisaDi^  to  be  puuisbed  with- 
out distinction,  and  which  act  could  never  be 
put  in  execution  in  a  case  of  greater  moment 
then  is  the  aK*olyeing  of  nyn  oppin  and  nolto- 
rious  traitors,  who  hade  ubsolutehe  disowned 
tJhe  king,  declaircd  him  a  tyrrau,  and  burnt 
&ts  lawes,  nor  in  a  case  so  clcarlie  proven,  the 
pro^tJan  being  an  to  all  the  tiyn,  most  clear  atid 
ooovbceifig,  and  the  pari i«*><  a^^nylieil  haviug 
not  only  b^m  titer  to  the  kuov^ledl^e  of  wholl 
^rrei  and  oountrcys,  and  who  durst  not  com- 
ir  wheo  cited  but  arc  vei  rvding  in  nartics 
^bnatming  nnd  murderuig  tue  king's  uoncstt 
■id  Uf »il  8iil{|icla,  nor  in  a  tytne  wlmrio  perjo- 


pi  t*btnt,  and  therfor  U»er  is  no  distinction  to  be 
made  but  Jhliant  jurin^  the  lawe  makes  lliem 
to  be  present,  nor  does  the  reason  of  difference 
condt^cendit  on  militat  any  waves  in  this  casc^ 
for  tile  assyse  are  not  to  consider  what  might 
have  beiu  said  if  they  hade  bein  present,  but 
are  to  proceed  *  secundum  allegata  it  probata/ 
aud  theHbrif  the  probation  l>eiug  incontraverted 
(as  iu  ibis  case  it  was)  they  should  have  eou* 
demnetl,  aud  if  the  pannalls  hade  any  thing  to 
%^y  for  tliemselves  sibi  imputent^  that  did  not 
com  pet  r  l>ei}ig  citexl,  and  they  may  htfve  a  re* 
medie  if  they  Uiereller  compeir  and  ofler  them- 
selves to  a  tryall. 

To    the  second  the  act    of  parliament   lyi 
opponed  bearing  that  persons  assolycj ug  nilif] 
JMstlie  are  to  be  accused,  not  only  of   per-  ' 
verse  and  partiall  assolycing,  but  ot  *  temere 
'  jurantes  super  aasisam/  aud  the  taw   could 
not    distinguish  whither    men    did  by   par- 
tialitie  or   wiifulnoss  assolyie,  or  if  they  as- 
solyied  only  rashlie  by  error  for  utalice  and  dof  | 
signe,  being  latent  acts  of  the  miud,  the  Iaw0n 
could  not  know  them  but  by  tlie  etiect,  for  aue 
assyser  may  be  of  those  peruitious  princijde$ 
that  thinks  Bothwelbridge  was  no  rebellion; 
and  yet  no  iu:in  knevve  it   but  God  Almighty^ 
and  tliertbre  the  law  has  tixed  upon  most  cleac 
grounds  which  is  to  know  the  cauae  by  the  elW* 
iect,  nor  cane  ther  be  any  other  pt' 
fiilneft  and  partialttie  ii'  it  w«r  to  be  <;f  i 


U 


87.1 


33  CHARLES  II.     Proceedings  against  AU».  Biair  and  others,      [8S 


on  and  proven,  then  that  efter  a  clear  and  con- 
▼inceing  probation  was  led  of  the  guilt  they  as- 
solyied,  and  this  is  the  same  probation  tliat 
could  1)0  led  of  130  witnesses  wer  led,  for  in  the 
c(»nstruction  of  lawe,  he  does  wilfullie  assolyie 
"Who  assulyics  contrair  to  probation,  that  the 
)awe  allowes,  and  the  probation  of  two  or  three 
witnesses  in  a  palpable  matter  that  falls  under 
sense,  such  as  I>eingin  amies  with  the  retells, 
is  as  coRvinceinjr  a  ]>rubation  as  if  150  did  de- 
pone, and  if  this  condescension  wer  requisit, 
this  law  wouifl  be  absolutlie  overturned,  elludit 
and  made  useless,  since  it  will  be  impossible 
for  the  king  to  prove  partialitie  and  wilfulnes 
otherwayes  then  ex  re  ipsa,  so  that  this  inter- 
pretation being  inconsistent  witli  the  designc  of 
the  luwe,  and  the  securitie  of  the  common 
w&hh,  this  sense  cannot  at  all  be  sustained  or 
fastened  upon  it,  for  that  wer  not  to  interpret  a 
lawe,  but  to  abrogat  it. 

Sir  John  Cunningfiame  duplyes,  Tliat  the 
punishment  which  is  to  he  irrogat  in  case  the 
pannalU  be  found  guilty,  l>eiug  no  lesse  then 


viz.  1604  and  1635,  which  took  no  eflect,  nor 
was  the  assyse  put  to  ane  assyse. 

2d.  The  act  of  parliament  1669,  which  flip- 
poynted  probation  to  be  adduced  in  presedca 
of  ane  assyse  in  absence  of  a  traitor,  in  crymetf 
of  treason,  cannot  be  extendit  to  comprehend 
the  case  of  ane  assyse  of  error,  for  as  thtf 
cr}'me  of  error  is  altogitlier  contradistinct  from 
the  crimes  mentioned  in  that  act  of  parliament,' 
which  was  the  only  subject  of  the  parliament's 
consideration  at  that  time,  so  no  law  cane  im- 
port the  punishment  of  error ;  but  tbe  act 
foundit  upon  in  the  pro|>osition  mider  which 
the  pancalls  fall  not  as  aforsaid,  nor  in  so  great 
and  important  cases  to  the  loidges  whichSawa 
equiparats  to  ther  lyff,  must  con5e(|nentialI  in- 
ferences and  illations  from  posterior  lawes  be  a 
ground  to  irrogat  so  hye  punishments,  eape- 
ciallie  wher  the  disparities  are  so  urgent  antf 
pi-egnant  as  are  adduced  in  the  defence. 

3.  That  notwithstanding  of  his  maje8tie'» 
advocate's  allegeance,  the  lybell  ought  to  bear 
and  should  bcqualitied  upon  parualitie  and  fk- 


infaniic,  that  thcv  shoultV  have  no  ri;;[||t  to  stand  I  vcur,  is  evinced  first  from  the  expi'csse 


injuJgijiiicnt, 

and  this   being  so  great  a 


i; 


tfie  tinsell  of  tlier*^  estaies,  Sec 
conceriic  of  tho 
leidges,  they  <»u|L,ht  not  to  pass  to  the  know- 
ledge  of  an  assyse  in  order  hcrciO,  but  upon 
a  clear,  positive,  and  express  law,  and  f-n*  a 
crime  subsnmed  upon  in  the  tonnes  of  lawe,  anrl 
thcrforc  seeing  i'  cannot  he  contiavertcd  that 
the  pui1ic-s  clenged  wer  not  showcn  nor  pro- 
duced ber<»re  the  assyse,  the  assystrs  who  lie 
pluialitie  clenged,  cnnnot  upon  that  act  be 
[)f;]*scwfd  for  error,  and  as  to  the  replye  made 
l)e  his  :n:ijcstie's  advocat,  that  these  word.s  in 
the  act  ol  p;irliament,  viz.  the  indyted  person 
pliov.j.'n  and  prodisced,  imports  notding  else  but 
that  tlie  ]»rrson  he  spociallie  designed,  the  act 
of  p;nTianit*iit  is  opponed,  uhich  requyrcs  the 
showcing  oltlie  ind\tcd  person,  and  it  is  most 
ccrlaiiic,  and  cannot  he  contravcrted,  thnt  the 
act  re«jU3TiKl  the  production  of  the  person  on 
the  pannall,  because  befor  the  late  act  of  par- 
liament, never  person  past  to  the  knowledge  of 
ane  inijucist  but  wher  he  was  present  on  the 
paimall,  and  as  those  are  the  expresse  words 
and  clt  ar  import  of  the  act  of  parliament,  so 
in  ord'T  to  the  clearing  of  ane  assyse,  tln-r  is 
ant*  al>so!ut  \ast  diH'ercnce  betwixt  ane  assyse 
clenging  or  convicting  parte  audita  et  present c 
et  pii!  ft  inaudif/i,  w  her  the  conscience  of  the 
assize  i^  to  be  convinced  of  the  pannall's  ac- 
cession to  the  guilt,  or  iVeedome  from  the 
guih  by  the  moment  of  a  probation,  against 
which  a  pannall  may  object,  or  by  the 
riionicnt  of  the  pannal's  delcnce  or  excnlpa- 
ti»>p,  o;-f|  r..it\vithstautling  of  this  act  of  par- 
liainciil.  r.iil  tliat  now  in  the  space  of  200 
\cars  since  the  niakcinLT  thereof,  ther  could 
Ii4»t  ln:t^l:ave  oecurred  cases  uiierrin  ther  was 
much  more  cn'1'.Miee  and  elearne*  to  indvt  ane 
assNsc  of  error  then  in  this  Cf  se,  ytl  his  ma- 
jesfie's  adxtuat  cannot  make  appeir  by  the 
Journnlls  of  Justiciary,  that  ever  ane  assyse 
was  convict  of  eri-or,  and  so  fare  as  is  knowen 
iMVAF  aiie  anyse  accuaed  of  error  but  t^vicc, 


oftheactof  parliament;  S2dlie,  from  the  na-' 
tore  of  a  verdict  wherein  assyf^ers  proceed  upon 
tlie  motion  and  conviction  of  ther  own  con- 
sciences upon  ihu  poynt  of  probation ;  Sdlie, 
from  the  qualitie  of  *|»ersons  who  passes  upoa 
the  assyse,  whom  not  only  the  law  of  the  kin^ 
dome  pVpsumes  to  be  probi  hoiuinei  terra,  but 
being  Jici-sons  culled  and  uominat  by  his  ma- 
jestie's  advocat,  ther  integritie  and  fidelitie 
cannot  be  dmwen  in  ijuestion  mearlie,  becauie 
of  ther  verdict,  wherm  they  are  supposed  to' 
have  served  ther  consciences,  being  under  thai 
Magnum  sucramcntum  which  assy  sere  give 
when  th  oy  are  choisen,  and  the  tords  of  justi- 
ciary would  be  pleased  to  consider  ho  we  im- 
portant ane  case  this  may  prove  wher  ther  is 
so  frequent  use  for  assyners,  that  if  tbe  assyser 
serve  his  conscience  and  elenge,  he  most  then 
rune  the  hazard  of  ane  great  assyse,  and  yet 
serve  his  conscience  he  most  in  regainl  of  nia 
oath,  and  his  convixtion,  and  it  is  uiion  thia 
consideration  that  the  lawe  has  expresslie  re- 
quyred  partialitie  and  favour,  because  it  is  not 
to  be  presumed  that  a  man  upon  oath  would 
damne  himself  either  to  assolyie  or  condemne, 
unless  it  could  be  made  out  by  these  qualifi- 
cations of  lordes  or  hr3  brie,  or  dounright  la- 
vour  from  kindnes  to  the  partie,  which  cannot 
be  pretendit  in  this  case,  wherein  non  of  tlie 
parties  insisted  againcstdid  so  much  asknowe 
any  of  the  parties  cleoge<l,  and  the  pretence 
that  it  was  done  from  a  principle  is  a  worse  ac- 
cusation then  the  dittay,  and  absolutlie  unjust, 
because  those  verie  assysers  concurred  in  the 
cx>nvieting  of  eight  and  fourtie  at  the  same 
tyme. 

Sir  Gein-gc  Lockhart  adds,  that  it  is  most  e?i- 
dent  by  the  act  of  Parliament,  king  James  3d, 
and  by  the  inviolable  practiq',  and  records  in 
the  books  of  adjournal,  that  the  penrons  of 
the  pannalb)  ought  to  have  bein  sisted  and  pro* 
du(;e«l,  and  it  is  a  glosse  aUogithcr  incopsiatept 
with  the  act  itself,  that  these  words  the  per^* 


f 


89] 


upon  a  PracfMs  of  Er%*or* 


»oii  indjt^  ihmren  to  the  aiisyfir)  is  to  be  iin- 
*kn»t#HMl  only  of  a  de^ig:nation  oi]  the  ^innunlK 
be  QAiiie  anJf(iretiame,or  the  )).k«^anil  ibe  rcfi- 
%on  tsmo&t  clear,  for  i^hiiber  the  paniialt  tie 
lircseot  or  abs4:nt,  all  criininall  I)'b«llH|  and 
<:i^ill  rctjuires  »iuii    '  hniis,  aiul   ihcdor 

UiG  ^howioLC  tlic  [  led  Yvaaaststin^ 

and  [irmhimn{rthe  |m  jvun,  und  vvliidi  not  only 
IS  rcfjllyrc^d  by  the  suid  act  ot*  Parlianu'ut,  but 
V/SKi  uls<>  retjuyrtnl  by  the  couitnan  law,  uttd 
^itj  lawt*  of  all  nations,  utid  the  canlriirv 
whcrof  was  nerer  iiretendit  or  beard  of  till 
the  late  a«*l  of  (jarliutnent  \ni9*  Aod  as  to 
that  ai^iiinent  tb»l  the  late  act  of  parliament 
hoc  i^wtbat  it  allo^res  a  procet^dor  agaiue&t  ab- 
■enlij  and  d<*c1airts  the  sentence  and  d(M»m  of 
Inrtanllurr^  fulloweijtg'  tberenpon  valid,  does 
also  iiiferrc  that  assysers,  if  they  should  as- 
golyie  tijcraiust  a  clear  probation  nnay  be  per- 
«cwcd  for  error,  it  is  aDswered,  the  argiimcDt 
IH  aoe  absolute  inconsequence,  and  on  the  eon* 
trair  the  same  is  retorted,  because  his  ma- 
jeaiie  and  estates  of  parliament  makein^  a 
liiwc  in  mtitaid  connexa  and  dcclairing:  tlie 
ipeciall  eflViis  of  that  prucedor,  that  it  should 
Ikt  valid  as  to  ilie  sentence  condemnin;^'  and 
the  doom  of  forfaulture,  and  beiD|f  let  lurvcc^ 
taria  oa  to  these  poynts»  it  is  impossible  that  a 
lawe  decfairin^,  as  to  special!  effects,  and  being; 
both  ft  corrurlory  lawe,  and  *  in  materil 
'  mitxime  odiosa,*  it  cane  l)e  extend  it  t<i  ai»y 
other  effect  then  these  cxprest,  and  the  com- 
fnt>n  rule  of  lawe  takes  place  that  '^  casus  omis- 
*  stis  habctur  pro  onitsso/  and  the  lords  of  ses- 
ajou  are  iti  usp  so  to  interpret  law*  and  arts  of 

{uirliainentt  fVen  *  tn  materiti  civili/  wlier  the 
ane  itst^lf  allowps  a  ju^  and  rationall  exten- 
sion *  ex  firesuniptfl  nipnte  lefjijilitoris/  ns  tor 
example  in  tho>;e  sUlute*relatio|r  lo  r«»rnpr)se- 
hng'  fLiid  aitjudiraltonHf  bei^aime  the  stiitut  as  to 
adjudications  d^ies  not  InMr  that  sp«»eiall  eflert, 
thai  lite  udjudi;rr8houUI  pay  a  cuuiposilion  to 
the  anjienor,  Ibe  lord**  iifMin  the  corirnton 
grounds  of  lane,  that  statuts  wcti*  itrtctuntfn 
jun$,  and  could  not  be  cxtendit,  thouyh  iher 
was  the  saire  pari  lie  of  reason^  yet  ivould  not 
eic tend  ibe  :  taint  of  ir'tmprymuijlti  the  case  of 
tidjudicfltion,  unilll  by  the  late  act  of  ^»ar)ia* 
nient,  tiiat  particular  case  was  providit  (or,  but 
it  werane  absnlul  ovi-rttirniflg^  of  the  fundu- 
lioo  of  .1'  )lt  h«es,  that  a  posterior  act 

of  parlt  k  ^  '*'«'  torrrrlorirt,  as  to  spe- 

cinll  ertV'i  t>  mrn  )u  mentioned,  and  proceeding 
upon  a  siieciall  narrative  that  it  wtr  unjust  that 
ptrsou^  by  tlitr  ub^fiice  and  contumacy  sliould 
reap  any  ad^aniutfe,  nhirh  narn*tive,  tho  it 
lie  verie  just,  a»  lo  tlie  imntmlb  themselves,  who 
did  not  compeir,  yet  dots'not  in  the  least  mi- 
ll tat  a^ifist  the  aM3'<(e,  that  such  nne  act  of 
parliniuent  pmce«-dintf  uj^m  such  speciall  con- 
dci'atinns,  and  only  innovateing*  the  former 
W.fare  and  cu»tome  as  to  the  speeiall  tacts  tberio 
PwPntioned,  should  b)*  ane  interjiretation  be  ex- 
JH»nH  to  lay  ane  fun  da  t  ton  of  a  proces  of  error 
■guinst  the  ansyaef  iv|\^n  the  pannatls  wer 
not  pri*!5rnt,  and  by  i*hose  presence  they  iiiig-ht 
ktve  beiu  cleared  in  ther  cooicifQcefi,  of  roaoy 


A.  D^ldSl.  [90  I 

doubts  and  questions,  whereof  it  was  impossible  j 
ihey  could  lie  cleared  beinc"  absent,  and  tho  ihef  . 
wer  any  reason  to  extend  ine  wt  of  parliament  J 
ktn^  Jumea  Sil,  that  it  should  proceed  in  tha  ; 
case  of  asi^ysers  wher  panoalls  are  absent,  iti  J 
cane  only  be  done  by  act  of  parliament,  J 

!?do,  Assysers  by'the  lawe  of  the  kingdomr^J 
being'  ab^olut  judges  of  the  probation^  as  they] 
may  eondemne  without  any  probatioo  at  all  ] 
up«m  the  single  conviction   of  iher  own   con- 


sciences, so  •  momenta  probationmo  sunt  lit 
*arl>itriojudici**  •/  and  to  convince  the  Lords  of 
justiciar)',  that  ther  is  neither  absunbtie  nor 
any  unwarrantable  streatch  in  this  |K»)  nl,  ther  | 
is  not  a  more  famous  (question  in  tne  canooit  \ 
lawe»  then  whither  *  judex  contra  privatam  , 
'  couiirientiam  teneatur  sequi  allegata  ct  pro- 
*  bata,^  whcrin  there  is  great  and  euiinenl  au*  ^ 
thurltes  upon  all  hands  ;    Hut  the  lawe  of  tbis^j 
kin^dome  has  clearlie  datemiined  the  case  as  to  1 
assysers,  that  ihey  are  to  proceed  and  deter-  < 
mine  accordinjf  to"^  the  conviction  of  ther  own 
conscience,  which  most  be  presumed,  nnle««#j 
his  majesties  ndrocate  wer  able  to  qualitie  tiitl  | 
instruct  such  fjualitications  against  them,   m 
would  make  it  appear  that  they  did   not  pro* 
ceed  upon  conviction  of  ther  consciences,  buf 
upon  other  unwarrantable  and  unjust  ground! 
which  if  they  wer  coDdescendit    upon   and 
proveu,  wer  a  clear  grouod  lo  a  great  asayst  I 
to  find  that  the  foraier  assyse  were  *  temerd 
*j«runtes  super  assl«am,'and  it  is  stroins;^^  doc- 
trio  to  think  that  ane  assyse  who  ^enerallie  ar€^ 
not  lawyers  but  called  as  *  probi  et  tideles  ho- 
*■  mines  |tatrite;^  to  jmiceed  according  to  that 
measure  of  li*rht  and   conviction,  that  God  hai 
endev^ed  thern  vvilh,  and  eiter  tliey  have  taken 
tlier  great  oath  to  proceed  without    unrtialitie 
or  favour^  that  such  ane  a^^sy^se  upon  the  sinj^tft 
pretence  that  a  prtd>ation  does  convince  others, 
which  did  not  convince  iliem  in  ther  consci- 
ence^,  sboubl  be  a^j^uod  for  aue  unsy  se  of  en'or, 
unlesse  ipialticntions   of  brybrie  and   corrup- 
tion, or  aniCf  Client  pactions  to  aeipiyt  parlies 
whatever  should  be  proven  could  be  oualiOed, 
and  pr«iven  a^^nist  thetn  ;  And  as  to  that  pi^e- 
teoce  tliat  if  nucIi  <jiialificati<»os  wer  requyred 
the  net  ot   parliami-nt  would  be  elusorie,  and 
that  It  is  not  i^tM^siUe  tor  bis  majesties  advocat 
to  prove  the  same  ; 

It  isansweieil,  the  pretence  is  most  ifround- 
les  and  irrelevant  and  i|s  most  mijiiMt  and  in- 
cousequentidl»  that  lens e  qualifieauotis  »hould,J 
be  recpiyreil  to  convince  ane  assiysc  off 
trror,  *  et  de  temeran  jmnmento^  then  the 
lawe  re^piyres  even  in  civil  cslscs  to  re!»cind 
sentances;  attd  yf  t  such  f^uabtications  of  cor- 
ruption, brybrie,  and  partialitje,  are  leqityreil  to 
l>e  made  appetr  atraintit  witneasesi  in  any  re|»ro- 
bator  of  titer  testi monies,  and  without  whichg 
such  repn»liaiors  never  was  nor  cane  be  sus- 
tained, and  therforanc  htmdreih  instancy  caae 
be  g'iven  that  such  quabfications  bo^th  have 
ticcurred  and  bein  proven,  so  ihaftKerja  00 
reaKon  lo  pretend,  but  these  both  mi^hi  and 
ou^hi  to  l»e  proven  in  the  ease  of  a^vvsera^ 
and  without  wbiehj  it  is  tmpoisible  that  in' Ian  t^ 


33  CHARLES  II.     ProeeeitHgi  againa  Alex.  Blair  and  taken,      [9t 


91J 

or  justice  they  cane  be  found  goU^  of  ac- 
quyttinf^  paiinalls  wilfullie,  temeranoualie,  or 
by  partialiiie  and  favour,  wbicb  are  the  expresse 
tenues  requy  red  by  the  act  of  parliament,  kinff 
James  3d,  and  if  such  a  fundation  war  laicl, 
there  is  no  man,  nay  scarce  lawyers  of  tlie 
greatest  reputation,  could  adventure  to  be 
members  ot  assyses,  notknoweing  howefare 
tliey  may  be  chairged  or  overtaken.  And 
the  lawe  of  the  nation  putts  assysers  upon 
no  such  racks  or  difficulties  but  only  tbafi 
as  honest  and  well  meaning  men  they 
should  proceed  according  to  the  integrietie 
of  ther  consciences  to  condemne  and  as- 
tulyie^  and  it  is  beyond  doubt,  and  the  bookes 
of  adjoumall  make  mention,  as  the  persewer 
protests  tor  error,  so  the  pannalls  may  doe 
tlie  same,  so  unto  what  inextricable  labyrinths 
ahould  assyers  be  involved  in  by  such  pro- 
testations and  hazards  upon  all  hands  that  ther 
estates  and  reputations  may  be  drawen  in  ques- 
tion as  guilty  of  perjone  upon  that  smgle 
pretence,  that  they  ought  to  have  nroceedit 
otherway  s  upon  the  probation  adduced ;  men's 
reasons  and  apprehensions,  being  as  different 
•8  ther  faces,  and  that  which  seems  to  be 
clear  and  convincing  to  one  being  dubious  and 
debatalile  as  to  another,  and  thcrfor  the  case 
being  so  high  and  of  such  extraordinary  im- 
portance as  to  all  men's  securities,  a  pro- 
cess of  error  cane  be  no  farder  sustained  then 
according  to  the  act  of  parliament  of  king 
James  3u,  and  even  thougli  the  pannalls  then 
indytcd  hade  bein  sisted  and  compeired,  his 
mqjcstie's  advocat  should  prove  and  qualifie 
bryhrie,  coiTuption,  and  otlier  grounds  of  gra- 
tincation. 

The  lords  justice  clerk  and  commissioners  of 
josticiarie  having  oousidred'the  lybcU  and  de- 
Inte,  they  repell  the  defence  and  duplie  in  res- 
pect of  the  1  yhell  and  replye,  and  remits  the 
lybell  to  the  knowlede  of  ane  great  assyse. 

As&ISA. 

TVilliam,  Earle  of  Dalhousie. 
Robert,  £arle  of  Roxburgh, 
C'oliii,  Earle  of  Balcarras. 
llie  Earle  of  Airlie. 
The  Viscount  of  Oxfobrd. 
The  Lord  f  uviotirstoun. 
John,  Lord  Elphiogstoun. 
The  Lord  Elibank. 
Andrew,  Lord  RoUo. 
Capt.  Alexander  Livingstouo. 
The  Laird  of  Gostbord. 
IMlt.  Henry  Maule. 
Capt.  M^Ceiizie,  of  Suddie. 
Alexander  Murray,  of  Melgum. 
Sir  Andrew  Bruce,  of  EarlcshaU. 
Mr.  William  Livingstoun,  of  Kibyth. 
Sir  Mark  Carss,  of  Cockpen. 
Sir  John  Why  turd,  of  Mdntoun 
John  Skein,  ot  Halyairds. 
Henry  Trotter,  of  MortounhalK 
Adam  Urquliart,  of  Meldrum. 
Ur.  John  Bayne,  of  Delneys, 
Wiiliam  Graham,  of  GurtiiiDioir. 


Sir  Wm.  Binning,  late  provest  of  Edinboigh. 
Capt.  Andrew  Dick. 
The  Assyse  kwfullie  swome,  bo  objeetioD  w 
the  contrair. 

His  Majettiet  Advocate^  for  Probatioo,  ad- 
duced the  Witnesses  Deposition,  led  and  ad- 
duced be  him  againest  the  persons  whom  tho 
pannalls  have  assolyied  with  their  verdict  ibl- 
towiug  therupon,  as  also  the  Pannalls  Decla- 
rations emmitted  Jliefbre  the  lords  of  bb  ma- 
jestie's  privie  council,  whereof  the  tenor  ibi- 
lowes: 

Edinburgh,  16  June,  1681,  in  presence  of  Ina 
miyestie's  privie  council*. 
Jamet  Gray,  of  WariestouD^  being  examined 


*  If  the  verdkt  had  been  taken  with  perfect 
regularity,  there  would  not  have  been  oocasioD 
to  resort  to  any  other  proof  of  the  votes,  wbicb 
had  been  given  by  each  of  the  assizers.  Thia 
will  appear  from  the  following  passages  of  Mr. 
Hume's  Commentaries,  *<  respecting  Trial  for 
Crimes." 

<'  To  pass  to  the  last  article  of  the  doty  of 
the  assize,  the  return  of  their  verdict  into  oourt. 
For  this  purpose  an  hour  is  appointed  by  or- 
dinary style  of  the  interlocutor  ordaining  then 
to  inclose ;  though  if  they  be  still  sitting  wbea 
that  hour  comes,  the  court  may  adjouni  anew^ 
and  appoint  them  another  hour.  In  the  or- 
dinary case,  the  verdict  can  be  received  only 
in  the  presence  of  the  {lannall ;  for,  as  men« 
tioued  formerly)  if  even  at  this  period  of  tba 
process  he  maxe  his  escape,  or  withdraw  hia 
appearance,  no  farther  step  can  be  taken  in  tha 
trial,  but  sentence  offugitation  only  be  pro- 
nounced, in  like  manner  as  if  he  never  haa  ap^ 
Scared  at  all.  Like  other  rules,  thb  one  may 
owever  be  departed  from  in  extraordinary  cir- 
cumstances, wnere,  without  injustice,  or  great 
inconvenience,  it  could  not  be  observed.  JaaA 
such  a  situation  occnrred  in  the  trial  of  Peter 
Glasgow,  and  others,  in  October  1797,  for  rioC 
It  happened  here,  that  Glasgow  was  taken  ill 
while  the  assize  were  inclosed,  and  beoauM' 
unable  to  attend  at  the  appointed  hour  for  ra- 
ceiving  the  verdict  from  their  hands.  Never- 
theless, af  others  were  under  trial  on  the  sama 
indictment,  it  was  held  that  these  had  a  rigfat 
to  know  their  fate,  and  conid  not  on  hb  account 
be  subjected  to  farther  anxiety  or  confinemcat. 
The  verdict  was  received  therefore  in  absaooa ' 
of  Glasgow,  and  he  had  sentence  afterward^ 
in  pursuance  of  hb  conviction . 

"  It  is  equally  true,  that  in  the  ordinary  caai^ 
the  verdict  can  be  received  in  the  preseaoa 
only  of  all  the  persons  of  assize.  And  the  ra»> 
son  is,  that  they  may,  in  open  court,  hear  ihm 
verdict  read  out  from  the  record,  and  dim 
own  and  acknowledge  it,  as  the  very  verdiol 
which  they  have  found,  and  have  committad 
to  the  keeping  of  their  chancellor,  to  be  dall« 
vered  by  him,  as  their  act  and  decision  to  th* 
bench.  For,  as  the  writing  b  anthenticaiad 
with  thenameaonly  orthecbanceltorand  olerfc, 
it  wo«M otlmrwisa  ba  io.tha  powar  of  ttca« 


9S] 


tftm  a  PfQCtH  0/  Errm^. 


A^D.  \6ni. 


c» 


caiilS»MS  he  Hid  Msmy}y\t  tome  ahA  conflemned 
olKei^,  hut  docs  not   remetnljer  t  le 

whom^  fuiil  declnircs  be  k  notr.M  of 

twh  •wearing^  huLwlU  stand  t>y  bi^  lutiict. 
Sic  Subtcnbitur^        Ja,  Gbay, 


Alexander  Biair,  merchandp  dediurefl  ecm- 
formis  la  James  Gray, 
^  Sk  Siihcribitur^         A»  Buiiiu 

AUrander  Bothmelly  of  Glefu^firas,  decdarce 

lie  aisolycd  some  of  the  pan  nails,  and  OOQ* 

detODied  others,  but  docs  not  remember  whither 

lieaiaolyted  any  of  the  nyn  or  not ;  confesies 

'  his  ftuh  and  comes  in  the  king^'s  will. 

Sic  Suhscrihtur^        A.  Bothwell, 


twop^TVODS,  in  concert  vviih  tach  other,  tomip* 

E:e9stb«  true  Terdict,  and  subslilule  anotlier 
ill  place,     Ajs  long  therefore  as  the  persons 
of  ttBnze  are  all  snrrtving,  and  able  to  attend, 

i  ^e  court  will  not  readily  recetre  the  verdict  in 
the  absence  of  any  of  them  ;  bnl  will  rather 
adjourn  that  business  to  another  time,  and 
take  order  for  compelling^  the  obedience  of  htm 
who  is  refractory,  or  negligent  of  his  duty. 
Such  an  adjourn ment  seems  to  have  taken 
place  in  the  trial  of  Alexander  Cunningham  for 
tire-raising,  July  31st,  16T7.  But,  like  the 
former,  tliis  rule'is  suitable  only  to  the  ordinary 
case,  and  is  not  observed  so  much  for  necessity, 
as  out  of  scrnpuloasness,  and  bAcanse  in  such 
niatten  the  Uw  is  desirous  of  having  the  best 
and  moBt  loletnn  evidence,  if  it  can  easily  be 
obtained.  It  ti»  not  therefore  to  be  imag^tned, 
that  the  verdict  is  Irtst,  if  one  or  more  of  the 
ttsige,  or  even  the  chancellor  himself,  happened 

,  l»  die,  io  the  interval  before  the  hour  appointed 
Ibr  returning  it.  Nay,  if  any  of  th em  be  Uk&a 
with  a  long^  and  severe  illness,  such  as  disables 
liim  to  attend,  it  seems  probable  that  here  too, 
on  pccmint  ^f  the  ponnel,  who  ouffht  not  to  be 
kept  in  suspence.  and  has  right  to  hjs  immediate 

,  I'reedom  in  case  of  acquittu,  the  rerdiirt  sliall 
be  received  in  the  presence,  and  under  the  failh 
^d  testimony  of  the  other  members  of  assize, 

•*  The  names  Of  the  bquest  being  called  over 
In  presence  of  the  court,  they  are  asked  concer- 

,  fung  their  chancellor,  which  of  them  he  is ;  and 
from  his  hands  the  verdict  in  receiveil  by  Ihe 
|ice«ding  jud^;  who  hanng  unsealccf  and 
penised  it,  delivers  it  to  the  cletk  of  cpurt,  to 
te  hy  bini  traotf^nYed  into  the  record  -,  after 

'  which,  and  a  C4ifefu]  comparison  of  tlie  record 
snd  original  writing,  which  takes  ptace  under 
Ihe  eye  of  the  court,  it  is  annonnced  and  read 
out  aloud.  The  veolict  is  then  sealed  up,  io 
C'>mpliance  with  the  rcgulstlons  of  1672 
JNo.  9)  which  declare  that  it  shall  never  agitin 

I  oe  opcnetl,  but  by  order  of  the  judge ;  and  that 
Ifthe  elerk  inf Vrngc  this  prahibitioD,  be  shall  be 
mmMied  with  the  lus^  of  his  oflioe,  and  other- 
wise, at  the  discretion  of  tlie  eourtp  At  that 
lime,  at  appears  from  the  way  in  which  ttiis 
article  is  iutrodur^d  in  the  statnt  ICTt,  it  was  ihe 
main  object  of  this  ordrr,  to  prevent  any  all*'- 
rmiiott  by  the  clerk  or  others,  of  those  marks 
lMi4<?b  wcra  tbi^n  subjoin*^  tv  the  ti%W9B  of  the 


Jvhn  Binnhg  dedntres  be  oanolyed  some  of 
the  defenders,  and  ooodesntied  others  that  wer 
paj^nallcd,  confesses  bis  fauH  and  oomes  in  th* 
king*a  mercie< 

Sic  Suhcribiiur^       /owjt  BnwfNO, 

Jawct  Baiilte,  merchand,  dechirrs  he  does 
not  remember  whom  be  condemned  orftssolyied 
of  the  persona  eondescendit  on,  and  «MUMn  to 
his  veroict. 
*  Sic  Subseribitur^        Jasubs  Baiuje* 

Mr*  Andrew  TempU^  of  Ravilrige,  declairei 
for  the  most  part  he  condemned  all  ♦  and  as- 
solyied  some,  and  comes  in  the  king's  mercy. 
Sic  Subscrtbitur^        Andrk  w  Tkm  PtB  * 

several  assizers,  for  tJgnifytng  bow  tbey  voted 
and  which  served  as  a  direction  whom  to  ar* 
raigni  in  case  of  a  prosecution  for  wilful  error, 
on  assize.  Though  nut  at  fir^  intended;  thii^ 
practice  serves  however  the  far  more  useful 
purpose,  of  hindering  all  alteration  of  either  the 
substance  or  the  form  of  the  verdict,  on  th# 
part  of  the  clerk  or  others,  whereon  to  found  9 

flea  of  disconformity  of  the  record  and  verdict, 
f  any  question  of  this  sert  shall  arise,  the  vei^ 
diet  having  remained  sealed  all  the  while,  and 
in  the  custody  of  tbe  court,  will,  on  bejn^ 
opened  in  their  presence,  stand  free  from  all 
suspicion,  and  testify  for  itself.  In  the  trial  of 
Alexander  Blair  and  others  Ivy  an  aisijse  of 
error,  on  the  ?5th  of  July,  1681,  the  lords  or- 
dained the  verdict  of  assyse  against  the  nyno 
persons  assoilzieil  to  be  oppined  and  broke  up, 
and  given  in  to  the  great  assyse  as  u  tneau  of 
probation.  The  verdict  was  opened  and  com- 
pared with  the  record,  and  again  sealed  up,  rii 
the  case  of  Gabriel  Cnnningham,  July  t?8fh, 
IT 30,  who  inaisled  m  sns|ieiisten  of  a  capital 
sentence,  prononaced  in  an  inferior  court. 
The  like  revision  seems  to  have  taken  nlace  in 
the  case  of  Livingston  (Madanrtn,  No,  55.) 
%vhere  tbe  verdict  was  remitted  for  considera- 
tion, by  the  judges  who  had  received  it  on  a 
circuit.  Intbec*aae  also  of  Hog  and  Boutur, 
Jidy  24th,  1738,  on  a  motion  for  the  prinnels, 
*^  'f  hat  there  was  Bome  variation  in  engrossing 
the  verdict  of  assize  in  the  record  from  tb# 
principal  verdict,"  onler  was  given  to  unsc«l 
and  compare  it ;  and,  being  fouiul  ri^t,  it  wai 
again  sealed  up.'*    Vol.  2,  p*  266* 

"  The  form  fof the  v^erdict]  inost  bi^a  wreit- 
lea  form.  UTierein  the  first  thintr  that  is 
marked,  is  the  Sederunt^  or  the  names  of  th<i 
persons  of  assize ;  which  serve'4  the  iIoubl# 
purpose  of  vouching  tliat  they  were  fully  met, 
aiidof  applying  the  verdict  to  ihe  parUculAr 
case  or  trnif.  Frurinerly,  ibis  wm  neeilfid  for 
a  Ihiid  reason,  in  vrder  th»t  each  luiio'v  vole 
might  be  suhjoiacd  to  his  iinmc,  whereby  to 
distinguish  the  persons  who  might  1h^  liable  to. 
trial  for  wilful esHVOO  assize  :  in  which  view 
tlie  ix*gulatio&a  of  167%  |iaiticularly  ordered 
the  chancdlor  of  a%size  to  attend  to  that  mat« 
ter,''    Vol  2,  p.  ?78. 

*  This  wt»rd  itlt  apptars  to  bf  redoodatt. 


95]  33  CHARLES  II.     ProceedingB  again$t  Aiex.  Blair  and  others,       [96 

'  with  the  proDoancinfjr  of  doom  and  s«nUiioe 
agaiucst  them  till  Thursday  nixk. 

The  anid  day  the  lords  with  conaifiit  of  hii 
majestie's  ad\ocat,  deserts  the  dyel  agaioest 
Lewes  Johnstoun,  merchant,  Thomas  r^oble, 
merchant,  James  Baird»  of  Saucbtounhall, 
Robert  Sandielands,  merchant,  Robert  £liot 
Wright  and  Alexander  Henryson,  of  New- 
haven,  who  wer  |iersewc<l  for  error  cooforme 
to  ther  dittay  booked  the  25th  of  July  last, 
Simpliciter, 


John  Duudatf  of  Har?iestoan»  deelaircs  he 
condemned  and  assolyied  some,  but  does  not 
nowe  remember  he  assolyied  any  of  the  nyn, 
and  holds  by  his  renlict. 
Sic  Sub.  J.  Du*NDAs.  RoniEs,  Cane.  I.  P.D. 

Sir  JohnCumnghatnet  for  the  pannalls,  takes 
instruments  that  bis  majesties  advocat  declaires 
thut  he  makes  use  of  no  other  probation 
againcMt  the  pannallsr,  but  the  depositions  k<l 
ugaiiist  the  persons  assolyied,  ther  verdict  and 
declarations  above  wreitten. 

The  lords  justice  clerk  and  commissioners  of 
justiciary,  ordained  the  verdict  of  assyse 
against  the  nyn  persons  assolyied  to  be  oppined 
and  brock  up  and  ^ven  in  to  the  great  assyse 
as  a  mean  of  probation. 

Follows  the  verdict  of  the  assyse. 

The  assyse,  all  in  one  voice,  elected  the  earle 
of  Airlie  cnaocellor,  and  A.  M  urray  ther  clerk ; 
The  chancellar  and  wholl  assyoe  having  porticu- 
larlie  considered  the  several  depositions  led 
againest  the  nyn  persons  contained  in  the  lybell, 
assolyied  by  the  pluralitie  of  the  assyse,  finds 
all  in  one  voice  the  pluralitie  of  the  sdd  as* 
ayze  guilty  of  error  ;  and  as  to  the  sevin  im- 
pannalled  they  find  James  Grey  and  Alex- 
ander RIair,  guilty  by  pluralitie  of  votes,  my 
lord  Balcarras,  my  lord  Oxefurd,  Gosfurd,  Mr. 
Henry  Maule,  Rollo,  Alexander  Murray,  Mr. 
Livingstoun,  Mortounhall,  the  laird  of  Gart- 
more,  sir  William  Riuuiog,  find  them  guilty  if 
the  councill  dcclaire  that  those  nyn  wer  the 
finly  |»erKons  proposed,  and  they  confessed  they 
absolved  them.  As  to  Alexander  Both  well, 
of  Gleii(»rss,  John  Binning,  Vintner,  Mr.  An- 
drew I'emple,  of  Itavilrig,  are  found  guilty 
by  the  assyse  all  in  one  voice ;  and  as  to 
James  Baillie,  finds  him  guilty  by  pluralitie  of 
votes,  niy  lord  Balcarras  and  tlie  rest  betbr 
uaiiMMJ  iiualifieingasformerlie  in  the  case  of  Gray 
and  Blair  ;  As  to  John  Dundas,  finds  him  not 
ICuilty  by  pluralitie  of  votes  ;  The  earle  of 
Airlie  chancellar,  my  lord  Dalhousie,  Karles- 
hall,  caiitain  M'Kenzie,  find  him  guilty. 

Sic  Subscribiturj     Airue,  Chancellar. 

John  Dundas,  of  HarviesMon,  takes  instru- 
ments upon  the  verdict.  The  lords  continues 
the  pronouncing  doom  against  the  jieisons 
found  guilty  of  error  till  the  27th  instant,  and 
ordains  them  to  be  carryed  to  prison,  and  con- 
tinues as  to  the  other  pannalls  till  the  said  day. 

Jtt/y  27, 1681. 

The  lords  continups  the  dyet  againest  as- 
sy sers  for  error,  till  Wednesday  nixt,  and  or- 
Jaines  that  are  found  guilty  to  be  detained 
prisoner  till  then,  that  in  the  mean  tymc  the 
saids  lords  may  a«lvise  with  the  councill  ancnt 
the  punishment  of  such  who  came  in  the  king*s 
mercy. 

August  3,  1681. 

The  lords  continue  the  dyet  againest  captain 
John  Binning,  Alexander  Bothwell,  of  Glen- 
corse,  and  Mr.  Andrew  Temple,  of  Ravihige, 
wha  ara  found  guilty  by  ana  assyse  of  error,  ; 

4  I 


3Ir.  Waller  Pringle,  for  Alexander  Bhir 
and  James  Bailyie,  merchants,  James  Gray,  qf 
Waricstoun,  protested  againest  tlie  verdict,  as 
the  ground  of  any  sentance  againest  them, 
in  res|>ect  that  ther  vras  a  former  verdict,  and 
the  doors  oppined  and  the  samen  broke  np,  * 

*  <*  One  thin^'  says  Mr.  Hume,  Commen- 
taries **  Respectmg  Trial  Ibr  Crimes,"  vol.  9, 
p.  S73,  **•  is  now  matter  of  uniform  observanoe, 
mdeed  it  is  a  necessary  conseciuence  of  the  sta^ 
tute  1587,  c.  92,  that  the  decision  of  the  assixa 
is  transmitted  to  the  court  through  the  medinm 
of  the  written  verdict  alone.  Wherein  if  there 
be  any  thing  obscure,  or  defective,  or  even  con- 
tradictory or  unintelligible,  this  cannot  be  ex- 
plained, supplied,  or  amended  by  the  assize  in 
court,  on  the  question  or  suggestion  of  the 
judge ;  neither  can  the  judge  remand  them 
mto  a  stale  of  iuclosnre,  privately  to  reconsider 
and  correct  their  verdict,  for  themselves.  It 
must  be  taken  from  them  as  it  is,  aud  receive 
the  judgment  of  the  court,  with  all  its  imper- 
fections, how  gross  soever  these  may  be,  and 
without  r^rd  to  the  prejudicial  conse- 
quences, which  may  sometimes  attend  anch 
an  issue  of  the  tnal.  It  is  true,  instaocei 
are  to  be  found  of  the  infringement  of  this 
rule.  Such  as  that  which  is  recorded  by  Foim- 
tainhall,  in  the  trial  of  James  Learm<^tli 
i!)ei)tend)er  10th  and  1 1th  1678,  where,  as  thai 
judge  relates  it,  the  assize  were  repeatedly  re* 
inclosed,  till  they  found  against  tlie  pannel. 
Such  also  as  that  in  the  case  of  Marion  Wcir^ 
December  3rd,  1678,  reported  by  the  sanie 
judge,  where  the  assize,  *'  after  they  had  beea 
abroad  all  night,  were  the  next  day,  by  com- 
mand of  the  criminal  lords,  and  instigations  of 
the  king's  advocate,  reinclosed  to  mend  thoT 
verdict."  As*far  as  1  can  judge  from  the 
record,  though  expressed  somewhat  obscurely, 
the  like  had  liappened  in  the  trial  of  Alexamler 
Blair  and  others,  August  3rd,  }681,  convicted 
of  wilful  error  as  jury  men  in  a  trial  for  treason. 
It  was  objected,  that  no  sentence  could  paae* 
ap:ainst  the  paunels,  "  in  respect  there  waa  a 
former  verdict,  and  the  doors  oppined,  and  the . 
saiiiiii  brock  up,  upon  which  jMr.  Thomafl 
Skene  as  procurator  for  the  pannalls,  took  in« 
strumeuts."  The  rccoi-d  dues  not  say  that  puj 
answer  was  made  to  this  challenge  ;  nor  n  « 
any  notice  taken  of  it  in  the  doom  which  pasaed 
on  the  verdict.  Let  me  mention  too,  tuat  ^ 
an  advanced  period  even  of  tlie  present  cen- 
tury, a  verdict  seems  to  have  been  sustained  bv 


^pem  «  Proeeu  of  Err9r* 

tipoo  wbicb  Mr*  Tbarnas  8kene  as  procurator 
fiirlhemiDnaJU  took  infitniintniU,  to  which  in- 
uruiiient  ihc  tfaidsi  (innnulls  .idbenfAiid  pro^sls 
Ibr  reoieiil  of  law  e,  and  ilmt  this  thcf  protesta- 
tion migliL  be  iiiiertio  tbebookee  of  adjourn ul I. 


A.  D.  168I. 


P<»j 


the  Lords,  notwitbstaudm^  an  irregpiUrity  of 
thitittoft,  t  allude  to  the  sHs^iensJon,  pttrsued 
.  bv  GubricI  Cnniiin^hamf  of  a  capital  sentence 
I  of  the  regahiy  court  ofGIasqpow  Aagust  17^0, 
»ne  of  this  m4n*8  allegations  wai^  (but  it  was 
mentioned  ta  passing  oohs  and  wan  not  insisliK] 
on  as  a  reason  of  AUS|>cn9ion,)  that^  fmi  'm\^  made 
up  their  ferdWt,  the  jury  separated  fur  the 
ni^rbtt  and  next  duy  rctnrncu  it  into  court  ; 
aud  that  aAer  a  ha*ity  and  not  very  audible 
reailing-  (as  was  said)  they  reinclosed  by  order 
of  the  jud^e,  Mr.  Orr,  and  a^ain  found  a  ver- 
diet,  to  tlie  same  or  nearly  tlic  same  purpose. 
On  ih  rth  of  November  17:30,  *'  the  said  Tho- 
inai  Orr  being  called  to  the  bar,  the  court  took 
notice,  that  he  bad  tailed  tnuch  in  his  duty,  in 
auppreiiiinfr  <>r  refusinjf  to  ally w  the  first  ver- 
dict returned  a|;aifiRt  the  said  Gabriel  Cunning^- 
hani  to  be  openly  read  in  iMJurt,  tvliich  was 
the  pannefs  rijjht»  and  Uie  right  of  every  sub- 
ject ;  and  Uiat  he  pronounced  sentence  of  death 
a(ratnst  Cunuinkrbain  upon  the  tccond  verdict ^ 
although  the  tacts  libelled  were  ibund  con- 
junctly relevant,  and  that  the  jury  had  found 
one  ot  these  facts  not  pmven  ^  therefore  the 
liorrls  K-eoranocnded  to  the  lord  justice  clerk 
lo  rebuke  the  %iin\  Thuu^as  Oi  r  for  the^e  pro* 
r  '1-  s,  nnd  he  was  accordin'^ly  rebuked  ta 
i>ri,"  Sec.  Yet  the  lx»rds  hwd  previously 
fyi-  I  •' ■;;  verdict  as  warnuil  i«»r  sentence 
of  (  'ioo.     Notwitli8randJni(  this  pie- 

cedt :.il  cannot  help  entertiiioini^  an  oni- 

bion,   that    where  the  final  and  urdy   venlict 
which   passes  ou   record  is   prooouriced  after 
rc-eniry  into  court,  the  regular  cou^iefjiience  is 
the  lull  uhiM>lritor  of  the  panneli  as  fordo  in^ 
frinjjrmcnt  of  the  %iatutti  1587. 

**  It  is  true,  tluit  In  n-poriioK  the  sftid  case  of 
ITur  ,  Ifyrd  Fountain  hall  seems  inclined 

to  I  ..  an  thii  bend,  according  as   the 

mmuK  1ju»  e  or  have  not  disperjted,  at  the  close 
of  their  first  siitiuj?.     Liird  Royston  too,  f  «• 
presses  h':     .    '  .  tij^t  to  Uie  same  elFect  ; 

and  noil*  I  also,  of  the  authority 

ofatlean^  ,.  ,   where  this  doctrine 

seems  to  be  r  I  1  v  dehvered,     1   allude 

In  tl»f>  trial  ot    L......  .  -r  Cuiuiai|<hatn  for  fire- 

luly  30lIi,  1677,  where  the  iiilerlocutor 
"l<>n>:  '^  'I'll*  L'lrdM,  Sec.  having"  con- 
sul' rptviroed  upon  the 
iao  tj  that  the  ^rne  is 
t)Ot  cWikf  in  sua  iar  m  liiey  iind  him  g'uilty  of 
the  pfe*tifU(thort'«,  and  nave  not  fund  him 
guilty  of  wiM  I  »fme  to  the 
dtttay  and  ih  the  same  to 
them;  and  i  vi  taict  was  tint 
aflfircd,  at|  th*  tmt  pnsent,  some 
of  thcu)  haf  n  I  Ml  d(»i.|o?«iii^  i^oue 
outoftoMu,  iiavirt\f  thereafter 
pust  before  tin  >  i:a.iit'  n»  tit  all  pre5*ent  at  the 
^nmt>  1T1  of  the  rcrdjct^  *  sa  thai  tliure  has 
YUL.  XL 


\ 


Mr.  PringU  also  allcadged  that  the  rertUct  L 
did   bear  them  ^lilty  but  not  of  error^  and^j 
therfor    the  justice's'  ronhi    not    proc4^(fil    tft*\ 
sentancr  ajfainest  them  upon  that  rerdicl.  Th« 
loi'ds  justice  clerk  and  cooitnissioners  of  justt- 


*  hein  0€Ca<>ion   for  the  assizers  to  meet  ami- 

*  speak  wkh  the  persewars  and  defenders,  f*r  j 

*  some  persons  from  them,  doe  thei^tbre  find  1 

*  that  they  cannot  a^in  inclose  the  assiJu:  i*  I 
hut  considering  the  venUct  as  it  stands,  with  < 
the  peliiion  t^rven  tn  be  the  pannel  o^ering'  him- 
self to  banishment,  they  therefore,  by  the 
mouth  of  Adam  Auld,  &c*  Dempster  of  court, 
decerned  and^  adjudy^e^l  the  said  *^  r 
Cuuniug^ham  to  be  banished,**  &e.  1>  , 
for  my  own  part,  I  find  great  di^culiy  ut  1  e* 
concihn^  a  rcincloaore  of  the  ass^i^e,  in  anj 
case,  wilh  I  he  injunction  of  the  slat*  15B7, 
c.  92,  which  does  not  dikting^uish  b£tweeo  com- 
munication ivith  thi(  judi^es,  and  vvith  others. 
And  especially  directs  the  assize,  if  they  hare 
any  duubt  of  which  they  wuuld  be  resolved*  io 
propose  it  openly,  before  inclosing  or  r«lilovin^  j 
forth  of  jiid^mcot ;  and  forbids  them  to  be  j 
removed  from  their  state  of  custody,  till  they 
be  finally  agreed  on  their  answer.  [**  It  is  sta- 
tute antf  ordained,  that  bow  sDone  the  hnill 
Dersute,  defenses,  and  answers  thereto,  ar  fuUjf 
heard  he  the  assize,  gif  ony  of  the  saids  kssh* 
sowrea  hes  ony  doubt  quhairof  they  wald  he 
resolvcj,  that  they  propone  the  same  openly^ 
in  presence  of  the  parties,  in  faceof  the  judg«- 
tncnt  before  they  passe  out  tlienisclves,  atid 
immediately  at^er  that  the  said  assise  hes 
clio&L'U  tlieir  chanodlit,  the  clerk  of  justicinrj 
sail  inclose  the  said  assize  them  aikme,  or  in 
an  house  he  themselves,  and  suffer  n a  pnrsoa 
to  be  preaient  with  them,  or  repaiie  them  in 
ony waies,  naiher  clcik  uor  uthers,  under  pre- 
tense of  furder  inlbrmaliun,  resolving^  of  ony 
doubt,  or  i>ny  uther  cuUouv,  or  occasion 
c|uhatsumevc/;  bnt  that  the  said  house  he 
balden  fast,  and  tia  man  present  therein  but 
tile  said  asbisoures,  and  that  they  be  tioi  snf  * 
fei-cd  to  come  out  of  the  said  bou^e,  for 
ouhsitsuaiever  cause,  or  to  continue thegivinjf  off 
their  sen  tine  e  to  another  time  ;  but  that  they 
he  inclosed  as  said  is,  *  unto  the  time  they  ho 

*  tnlty  agrteed,'  and  return  their  answer  t>e  the 
mouth  of  the  said  chancel lar  to  the  judg-e/*) 
Whereas,  if  they  he  rctnclose*t,  their  tinal  an< 
sner  is  not  given  until  after  the  du^^dution  of 
their  sitting',  and  a  conference  with  the  court 
concerning  their  deci^iou.  ami  tuuU  r  the  mtlu- 
ence  of  the  seniimeais,  in  and  per- 
haps censures,  which  have  !  wi  out  Ott 
that  occasion.  It  ii  true,  Uim  coult-reuce  takee 
plm-e  under  the  public  eye* ;  but  then,  it  fot 
certain  has  relation  tti  the  trial,  which  may  not 
always  he  theciiKe  as  to  intercourse  viith  ih# 
jury  while  iucloiftd  t  and  jf  it  wer«  no  more* 
than  this,  it  is  an  objt^tion,  acoonJini^  to  tho 
spirit  of  the  statute  J5H7,  that  the  assjite  are 
vvitiu^i»es  of  the  reception,  whether  favourable  ^ 
or  otherwiM%  which  lh<>ir  verdict  meet*  Witl^ 

I  rum  the  audicAcc,  and  the  cuui  L'* 

u 


»] 


39  CHARLES  II.    Proeeefrngi  agam^  Aka.  BUAr  and  others,    f  100 


ciary,  be  the  mouth,  of  James  Henrvson,  macer 
of  c«)urt,  deceraecl  and  afljud^ed  the  saids 
Alexander  Blair,  Jamei  Baiihe,  and  James 
Gray,  of  Wariesloun  (as  beinff  teund  guilty  by 
aoc  assyse  of  error)  to  have  roriault  ainmitted 
and  tint  all  ther  cattell  and  other  moveables  to 
be  inbrotight  to  the  king's  tiae,  and  to  be 
earyed  to  |irison  within  the  Tolbuikfa  of  £din- 
burgh,  therin  to  remaine  for  the  space  of  anc 
year  and  day,  and  till  they  be  liberal  by  tlie 
juaticee  order,  and  that  in  alityme  hcrefter,they 
bnvc  tint  the  bcnefitt  of  the  lawe,  and  of  the 
land,  and  hare  incurred  the  paine  of  infamie, 
and  shall  never  be  heard  as  iritnes  in  probation, 
or  iu  acquytance  (or  purgation)  nor  to  make 
«ne  oath  lirfore  ane  judge,  nor  in  any  other 
kind  of  Blatter,  vrhioh  was  pronunced  fur 
4ooiu. 

AuguttBih,  1681. 

Captain  John  Binning,  vintner,  Alexander 
Both  \i  ell,  of  Glencorss,  and  Mr.  Andrew 
Trmple,  of  Revilrijif,  who  wer  found  guilty  by 
ane  assyse  of  wmfnU  error,  and  imprisoned 
within  the  Tolbiiitii  of  Edinburgh,  and  the 
eentancc  and  doom  against  them  continued  till 
this  day,  being  sett  at  libertie  by  thelonls  of 
his  majcstie's  privie  councill,  the  lords  justice 
dork,  and  commissionera  of  justiciary,  did 
continue  to  pronounce  sentance  againest  them 
till  tlie  councill  should  giveonler  thcranent 


Wridrow.aftor  mentioning  the  hard  measures 
whirh  wrn;  received  by  David  White  and  46 
ftUiLTH  of  Ijtuierkshire,  whose  names  were  in - 
fcirtvd  ill  the  I'roclamation  of  October  8, 1681, 
(of  wImhii  he  says,  <'  these  had  nrobation  led 
•{(ninNi  tlicm  in  nivsence,  and  all  that  is  proven 
auiiiiiNt  most  of  them  is  Converse  with  Kebels, 
%» lien  tliiry  were  going  up  and  down  tliat  shire, 
and  lying  in  camp  there,  in  which  the  whole 
•hire  \vas  necessarily  at  that  time  involved ; 
and  tliey  are  all  forfeited  in  common  form,  and 
ordt;nMl  to  bo  executed  as  traitors,  when  they 
shall  bo  apprehended,'  )  proceeils  thus : 

**  A  few  otiiers  are  brought  off  by  the  ver- 
dict of  the  assize,  as  not  having  their  indict- 
nieut  proven  against  them;  indeed  the  pro- 
bation against  them  who  are  forfeited  is  abun- 
dnntly  lame ;  Init,  it  seems,  the  advocate  would 
hiive  all,  who  did  not  resign  their  lands,  to  be 
conchulcfl  under  the  same  condemnation,  and 
threatiicd  the  people  on  tlie  assize,  with  a  pro- 
ces  of  error ;  and  I  find,  August  3,  a  process  of 
•rror  raised  against  those  who  had  been  upon 
tlie  nfisize  in  March  la^st,  and  had  liberate  some 
df  ^e  heretors  of  the  shire  of  Lanerk,  notour- 
iv  known  to  have  been  at  BoUiwel -bridge. 
There  are  in  the  Itecords  verv  long  and  learned 
debates,  by  the  lawyers,  in  (fefence  of  the  as- 
sizers. I'he  matter  is  very  intricate,  and  turns 
upon  quisquoiis  points.  At  length  all  the  as- 
sizers except  three  come  off  one  way  or 
other.  iSome  of  them  decline  their  de- 
tviices,  and  come  in  the  king's,  mercy,  the 
ftdrocate  deserts  the  di«t  against  oUmts.    Tii« 


tliree  whom  he  insists  against,  ore  Alex- 
ander Gray  and  James  Baillie,  meroliants  ia 
fidinburgh,  and  James  Gray  of  Warristouo. 
The  court  decern  them  to  have  amitted  all  their 
chattels  and  other  moveoj^es,  to  his  mi^eaty's 
use,  and  to  ly  in  prison  a  year's  time,  liiis 
was  done  in  terrorem,  and  to  fright  all  others, 
who  should  be  afterwards  on  the  assizes  of 
persecuted  people,  heartily  to  fall  in  with  the 
measures  or  tlie  managers." 

Of  this  proceeding  Fountainhall  writes  thus: 

**Junel6.  Atprivyoouncil,apreoo^tionwa§ 
taken  for  prepann^  a  dittay  by  an  assize  of  enor 
against  James  Baird  younger  of  SaughtonhalU 
Mr.  Andrew  Temple  of  Ravilridge,  Dundass  of 
Jervieston,  James  Baillie,  Thomas  NoUe,  and 
Robert  liSaudibinds,  merchants;  Robert  Elliot, 
Hugh  Johnston,  John  Binny,  Alexander  Blair, 
and  others ;  the  assizers,  who  had  on  the  llith 
of  March  last  cleansed  Somervile  of  Urat,  and 
sundry  other  heritors,  who  were  pannellcNl  for 
being  at  Bothwel  bridee,  though  there  was 
clear  probation  against  Uiem.  1  he  15  assisen 
were  called  in  one  by  one  before  the  coundli 
and  interrogate  to  declare  Hrat  not  upon  oath, 
which  is  a  new  method,)  wnether  they  voted 
Ales  and  condemns,  or  cleanses  and  assoilzies ; 
(for  it  was  not  marked  in  the  verdict  how  everj 
particular  man  voted,  as  should  have  been  done 
by  the  regulations  of  the  justice  court,  and  ni<- 
ti'lied  by  the  16th  act  p.  167S).  Some  four 
of  them  had  found  Urat,  &c.  guilty,  which 
they  declared,  and  so  were  freed:  Others 
craved  pardon  for  their  deansing  him,  aad 
came  in  the  king's  will  and  mercy:  Some 
said,  they  did  not  remember  how  they  voted  t 
Others  more  stoutly  adhered  to  their  verdict 
abtohitor,  and  that  in  so  doing  they  had  served 
both  their  light  and  conscience.  The  couneQ 
remitted  them  to  the  criminal  court,  to  be  pan- 
nellcd  there  on  the  63d  act  pari.  1475,  ^  tan- 
*  quam  temere  jurantes  supor  assisam,'  and  to 
be  judged  by  a  great  assize  of  S5  noble  persona 
id  esf,  gentlemen  at  least.  The  libel  uses  to 
be  in  Latin,  and  under  the  quarter  seal.  This 
was  a  strange  trial,  contrary  to  the  natore  of 
all  other  precognitions  taken  at  privy  oonncil, 
where  they  were  ever  designed  in  the  pannel'a 
favours  for  mitigation,  and  never  to  his  preju- 
dice, as  here. 

**  There  was  never  any  of  these  assizes  of 
error  that  ever  took,  effect  before  this,  in  Soot- 
land  :  But  see  one  learnedly  debate  in  Deoem* 
ber  1635,  p.  318,  of  ray  Cnm.  Collections. 

«*  On  tlie  25th  of  July  1681,  the  libel  agamat 
them  was  sustained  as  relevant  by  the  crim. 
judges,  and  after  much  difficulty  was  found 
proven  by  the  assize  of  25,  (though  ther  liod 
packed  them,  making  the  m^or  part  of  theim 
officers  in  the  forces,  and  other  dependera^ 
against  seven  of  them,  (the  rest  having  come  in 
thekini^'s  will,)  who  ad  lerrorem  of  oSienwefm 
imprisoned,  fincd^  and  declared  infamous  on 
the  said  old  act  in  anno  1475  ;  though  geno- 
rally  this  sentence  did  not  beget  Uwn  anj  ra». 
praach." 


mpm  «  PraeuB  a/  Err§r. 

**  Jftnii^  ir,  1685i  Jiiini^s  EaiUk  and  Mine 
ef  the  assizers,  wfto  in  10^1  v?erc  conTicteci  tt« 
guthv  of  givtner  an  rrroneous  f erdici  in  Ho- 
ilMrrile  of  Ur  ,  h&mg  been  sei  ai  li* 

bertv  iipoa  bo  i  1 1  exjininitied  to  pruon, 

tiU  tliey  ahouifi  [my  ihKir  (incs,^* 


A.  D,  1681, 


The  Case  which  FuuntiLluhall  menliotis  to 
have  occurreil  iti  163.^,  is  in  the  Records  of 
1  ustidar^ ,  as  fu)  1  a w« : 

CvJUA  JusTicuiifE,  8.  D,  N.  Tiegis  tentaia  nre- 

I  lorio  de  Etlmburgh,  tecundo  DfH?om6ri5^ 

Anuo  d'ni    I635t  [wr   magVos  Alexander 

Collide  cU acohatn  BoberUiUD,  Juitkliuios 

Diajititaios. 

Jntrmi* 
Mkt under  Iriiin^^  of  LetittlA, 

A'  U\k, 

J  he, 

W  ithyn, 

il  4  fVtter-neir, 

C.  ■■■  -    '-ilie, 

J-:  le, 

Mr.  Math(m  Lummisdtn, 

Asaysoffv  Ferscwit  for  Error* 

Ditaitiit  of  ye  error  comroittit  f>e  ihRm«  in 
<tHe  porlialt  and  if  illfull  claugein^  and  acftuit- 
Irnj^  ol"  Jameii  Qordttun  aon*  to  Oeorg;*  Gor- 
flotm  of  Logyaltoan  of  resettling  and  intercora' 
fnf»nm«'  of  and  with  Alex.  Leilh  and  Natha- 
p  .  1  .'oun  rebcUfs  and  fuptmes  for  dyo*i 
,  .chip*  rcof«  thiftis  and  oppre««rHmes 

i^mDJtmi  Bfmm  ye  Laird  of  Frcndraiicht  and 
'  Ms  t^MMIllS  SfieMt   in    ye    taid  Janir^  Goi- 


I  pmitj  tflit  And  smime  vpone  bi^ 

a^ys^    x^  _^  ,„.. . a^  tlmftif>of  ye  cryine  fbirsnud. 

I  iVsewarr-Sir  Tliomas  Hope  of  Cralgball, 
I  kttif kl  barniufilf  his  Mti^ues  iduoc^t  for  his 
I  hieoet  iotrifs. 

•      Pro/oftt<tfr»   ^  ''If,   Jamea  Bain) 

Bflr.  Tliomaa  N  <  r  Mr,  John  Nis- 

bit  Mr.  WiMJam  l'oii>e«)  aauoeates. 

The  fenoom  vpone  fMnoal  naktt  instrumen- 
lli  ol  yair  Hktrit  ftnd  pm^stai  for  yair  aaaikNi- 
«ds  relet  t 

ily  Lord  Aduoeat  prodocel  ano  Wtrrand 
of  ye  lofdia  ofoeGrail  eMttmall  of  y«  do  if  the 
fyH  August  iasi  1635  for  parsute  of  yeiitui- 
Dol  for  the  error  abotic;  wriiciu  Uolmiroff  ibe 
tciiiior  folio  wis  ^c.  togiild«r  wMi  tlie  tmut' 
mUis  Act*  dniiit  ye  sasl  day  of  ye  said  mofieth 
4f  Aofilit  t6S5. 

IMniteraiy  lord  idtiocat  produoet  ye  dit* 
tftd  didairat  ikat  be  had  gtrin  aae  )7op|ne 
'of  to  Mr.  John  Niabet  f|uiba  was  aduoeat  for 
I  Gordmm  in  }  e  iwai  urooet    Olf  ye  nii- 
Mm  tiittav  tbe  iaiiior  tbUowii^<»-^«  AlesauiiW 
itiviiif  MLealyfli  Q^etgia  Debpiter  is  H«ir» 
9 


loim  A1e3cander  Banennan  frf  FJmfc  JoUn» 
r*sfiivie    of    Gbssacbe   ^V  '  uloufi  of  , 

Schcat  by  n  Alexander  Abt  i  IW^rktu- 

boiif  Ueilof  AbercroniT 
aotier   Keith    of  l>uj 
TuUlefbotidio  Geon^e   tiomovni  (n 
Mr.   Mathow  Luu\i6deii  burge»  of 
James  Heatone   buries    yair"  Charh^    ..^,..4 
Letsler    barges    ynrr    J  olio    Caddell  seruilor 
to    RallnmlaUoch'  and   Ctcort^^   Rriiit*    iuirii^ 
fr\  zeand  ilk  nne  ^  uod 

n*  H^amekilt  as  br  i-*  of 

parhamcnt  and  inviolable  praciit^uc  ot  ibis  king-« 
dobif?  And  jipccittiiie  be  ane  art  maid  in  tb^- 
reg'neofoitr  souerane  lordis  prcdec^^s&or  king^ 
Jatopji  ihe  ibrid  of  guid  mt^mi^rif*  It  in  statute 
HP  t  tbatgil  ot  i'ctii' 

<  n^  the  AS  |'«?r- 

^<  liL  tharn*   Ik  in,  wil- 

f  fiarliahtie     Tli  put 

iuyti  Ltjci  of  auesssyir  of  taenti«  niea. 

Aod  being  ooayi^ed  y*of  sal  '  hod 

acpoirding  to  the  lawis  of  y^  ki  * 

the  suid  Miil  r»1  pHrliament  at  letj  t^i 

Nocht withstanding  qVof  it  is  ot  .  .i  ill 
ze  and  itk  aoe  of  zow  bt?ing  in  ane  rourt  of 
juaticiarie  bablen  within  ibe  tulhutb  ot  Edin- 
burgh f  pone  the  fvti  day  of  August  Isfit  by 
post  in  Ibis  instant  zetr  of  Gt»d  J^m^vi,  c. 
tbreiiie  fyve  seiris  he  Bit.  Alexander  Cnluile  of 
Blair  his  ma'ties  justice  depute  cbotsei ng  res- 
siiuit  sHome  and  admiHit  rponc  the  as^ysc  of 
James  Oordoun  sone  to  George  Gordonn  of 
Logyaltonn  quba  wasbrocbt  filnb  of  waird  and 
that  day  presentid  vpone  pannell  hetbir  th# 
^id  justice  depute  as  ana  noitoar  nialdactour 
and  treapassonr  indyttit  and  accusit  be  dittay 
ui  the  crymes  dter  spe'it  at  lenth  mentiooet  y  • 
infill  Tiz.  flbr  reoepting  stod  intercomonitig  of 
anc  Alexander  Leitb  and  Nathaniel  1  Gordouii, 
baith  rebelled  and  fugitiues  for  thifl  alauohter 
and  burning  of  the  lainl  of  Frendrauchts  coirnetf 
ami  vthcris  hearschips  and  opprcftstones  com- 
mittit  againes  tbe  said  lainl  of  Freodraucht 
and  bis  tcnocnte^  speriallie  for  recepting  of  ib« 
said  Alexander  Lcith  and  Nalhaniell  Gordoua 
rebelles  tbirauda  in  ye  munetb  of  Mercbe  laai 
W&6  zeires  And  intercomrooning  ivitb  tbams 
within  the  said  James  Gordoun  bis  duelling 
boim^  in  Knoklvttb  at  ye  leist  within  bia  cksio 
y*of  As  also  tor  ioterconioniog  and  kcjping 
c!Ofnpany  about  aiich  dayis  y%ltir  ^viih  the  6aia 
Nathonieh  Gordoun  and  Akxnndrr  Leitli 
ivitbtbe  diidlinsT  house  of  Mohcrt  LolUtje  in 
f  Iss4ie  Walii*  quhair  ye  i»aid  Jar* 
and  the  Katdis  rebel hs  soup pnl  < 
ny'C  and  coinmonod  and  eoiiif^rr 
tbar  splice  of  tbrt!c  houroi 
tbmy  went  to  year  Iteddis 
Gordoun  and  thay  lay  altugidder 
mer  Ihat  ny't  the  «skl  NuttianuM  Goitloun 
Altasuder  iJeithr  being  in  one  betl  and  thf  said 
Jantsp  Gordoun  wiUi  urn?  tii^ben  llcmpiii^frof 
fiiitebnie  ir^  v    htnl  ond    that  fxpres 

agniois  the  n  <  1 1 1  the  cunLrair  sprciath^ 

the  97  oetot  tlt^"  't  vmt  |]arbaujL*nt  of  our  !(oiie* 
rnn^  lords  darreal  graudfV  king  Jaiii««  tliv 


,.  .     4.ori{i]l||1 

:hat 

.    bo 

I   L>elbir 

nt  JfinK-a> 

111  Ltue  cbal- 


TO3] 


3S  CHARLES  IL     Praceedif^9  M^mnH  Alex.  Bhtrani  oiher$. 


^ftof  etcmall  mernorie  (jiihiilrby  it  istxpreslic 
prov^'tlit  statute  ami  onlnmit  that  na  oiauer  of 
pf  rvme  wtifnUie  or  wiltluglie  recejit  supplie 
maittefiie  lietend  or  do  Fauor  to  oiiy  of  bii  ma- 
jesties rebellts  beinff  tit  ibe  home  wiibin  yair 
hoQse  laudis  bouiuTes  ur  bailzeries  vnder  the 
jKuie  of  tiaiih  to  be  intiicted  vpone  the  t.>ontia- 
Tcncr  with  cvrifisaiitoun  of  his  haill  liioferble 
jTi'idis  and  iijraiiss  the  teonor  of  bis  nm^ties 
jiniclumationesmnid  and  publelst  mye  cotitrair 
111  ya  fiionfth  of  Januarla^tat  ye  mercat  croeea 
4jf  Abci'df  ne   Bantf  and  ¥*thevis  mercat  croces 
?«f  the  north  purts  of  yb kio^ome  diMhar|reing 
aJI  rpoepting'  aiitl  intercoutmnaiii^  with  ye  saidi^ 
rebftlis  r nder  the  pains  foirsaidis  »peU  in  ye 
ftRid  act  of  parliament  As  the  Mid  dituiv  pro- 
ducet  he  air  Thomas  Hoipof  Crai|fhall  knyt 
Wrrm«t  advocat  to  otir  souorane  loni  as  per- 
se war  y'of  for  bin  hienes  iotreis  uganist  the 
«nid  Jamen  Giirck»tiQ  than  iod}  tet  and  accnset 
j«rdit'iaUic  y'rby  ot'  ye  crj-mes  forsaidis   y'in 
ountentt  in  p^us  of  ye  said  justice  ile[>ute  tban 
•itand  in  judgfinetit  in  ye  selff  profMJrtia  Et\cr 
acfU!»atioti  of  ^e  quiiilk  James  (iortiouti  be  ver- 
teur  of  ye  said  ditUy  <il   ye  cryiues  foirsaidis 
•|>e^il  y'lntill  it  was  alle^t  be  Mr.  Jtihne  Nisbett 
iMhioca*  as  prelo^-  for  the  tiaid  James  Gordoun 
thai  y  e  dittay  in  that  p*Mnt  y*of  atient  intercom- 
momn^  was  nawayis  relefant  be  inferring  ca- 
pitall    puneichmeot   y^upoo  beeaus   the  said 
Uittay  was  not:ht  fouDdit  %poue  the  act  of  par- 
lianteni  nor  uponc  the  commoun  law    Nnther 
was  it  releraotlie  subsumet  y'intill   that  wit- 
tini^'lie  or  withtiglie  the  pannetl  intereomiuoned 
iknd  that  ane  occasionall  run  countering'  could 
nochl  iiupotrt  ane  acccssioun  to  yair  rebellioim 
quhajr  p'teis  ar  sarpryset  with  y*  earning  to 
yair  awm  bouss  or  to  other  places  qubair  they 
are    And  cannocht  desinfrauge  thatnesclffis  of 
yair  compunte  for  feir  of  irritatmg^  of  tbame  as 
mne  in««noe  of  Walter  Hay  and  J  ante   Grant 
And  in  the  present  caice  as  ye  pannell  hes  de- 
pooK    That  he  bad  bene  iii  Hobcrt  CoUenes 
lion^  in  Hassiewaltis  with  Hobert  Forbes  bro- 
ther to  the  persone   of    Aachterles     Robert 
Bemptter  of  CiucbDie  and   Robert  Cotlii^one 
burgfs  of  Abenlene.    All  vnsuspect  and  honest 
men  half  ane  day  befoir  the  relielli«  ciiming  to 
ye  house  quhtik  coming  ol^ye  reb<>!|iis  to  ye  said 
liousc  wa«  at  nyne  ho  ores*  of  the  nv*t  ijuhan 
the  pannell  could  nocht  gae  elis  quliair  being 
benichtted.     And  the  rebellis  for  yair  securitie 
b«iHog  srhote  and  tnaid  taat  ye  durris  of  ye 
flaid  house    And  as  to  thai  ^vord  *  coofereoce' 
mentionc't  in  ye  dittny    Tl»e  samen  is  nocht  re- 
]#vtint    to  impoirt  JntcrcouimuDinr^   rales     It 
iMd  b^'nr  subsumet  y'in  that  ye  paanell   horl 
tfdttrt  Willi  ye  rdbelUs  cottcemiDg  y*  rebellion 
th^ir  relH'ltioiui  practizes  and  desi^i^s  off  pur-» 
pois  to   Inn 
act  of  i> 
<#ptti\cr 

an  I' 

•lUEtUuUU^ 

tm  Num. 


I)  iuid  favour  tha me  conform  to  ye 

quhtlk   probibdUis  all    re- 

:    unA  m&ntening  of  rebellis 

I  or     Alul  the  law 

()te«  cum  banuitig 

^i|  I  Uuiiti^ji  r  Phar,  quest. 

17  ^«  L4Uit  '  H  «t  tractatiti 


mtm  rtJittUibus  auAt  v«rha  tr  i^ututaUiia .  *  *   Aitd 


y'foir  caoiKfcht  be  vuh««met  releianMie  »pf»1 
ane  at  ye  maistluaficcaisioiiall  fortoite  mirpry 
qubair  mto  anitueir  being  maid  be  his  ro^i 
teis  aduocat  as  perse  war  of  ye  dittay  A\ 
namelie  to  that  pairt  of  ye  said  alledg^ii 
proponet  agiunis  the  secund  pairt  y*of  Th( 
the  ^amyn  tuchl  to  be  repellit  in  respect  of  y 
dittay  quiiilk  is  foondit  upiiie  the  aetes  of  jMif- 
liament  and  nocht  upon  tlie  commoun  law*  aad 
ye  particuler  alleijatitjoes  adducet  imi  of  ys 
mw  and  doctors  hes  only  place  in  bnimitiji  toi 
ane  periicular  cryme  committit  agantst  »W 
subiect  But  nocht  in  tliame  quha  or  biiDiiil 
and  proscryret  for  ane  publictrcbellionn  as  th' 
is  And  the  occultatiouD  of  yc  deiiouuctil 
q«ibilk  is  vrjjet  in  the  deliffnce  is  uuly  in  frag- 
ranti  crimine  and  q*r  ye  committer  of  tbi 
cr\  mes  is  persewit  hett  fute  in  qiibilk  CMioa 
(^cruliutioun  hes  some  respect  hot  nocht  ryer- 
wayis  x^nd  lor  the  poynt  of  knowledge  in  aoe 
iJuLlict  rebellioun  the  notoritie  is  sufficieni 
bot  to  mak  the  patinell  iucxcuscable  his  nieit- 
ting-  with  the  rebellis  at  ye  tinu^  q^tenit  in  the 
dittay  As  in  M*che  1635  efiir  publict  inhi- 
hitioun  maid  be  bis  roa^ ties  Trez  in  Jdmiarof 
befoir  And  the  excuse  of  chance  m  meiitiiig  or 
of  ye  inteotioun  aud  purpose  is  frit 6k>us  Wo€ 
than  everie  man  sould  be  excuset  vpone  his 
intentiuiin  And  the  crynie  of  recept  and  inters 
commoning  (quhitk  in  so  publiet  a  retielliouo  is  i 
equall  to  ye  crvme  ikielf )  sould  be  vn*punet8ifl 
but  the  panneli  catio'icht  be  hard  to  preteii^| 
naiher  accidental]  meittinfif  nor  excuse  of  tutiat«* 
tioun  Becaus  at  the  first  tyme  thay  auM 
to  his  awin  bouse  and  in  taikin  of  y'  familia- 
ritie  tbay  socht  ane  lane  for  him  of  ane  pif- 
tolet  and  within  aucht  uays  y  Vfler,  thay  mett 
at  tlie  house  of  HassiewalUs  witliin  ane  mylt 
to  his  awin  house  q'upotie  inbtrumentis  wis 
tan e  be  his  ma*ies  ad?ocat  that  it  was  erantift 
be  the  pannell  that  day  in  judgment  that  y« 
said  house  of  Hassiewtiliiii  was  within  aoe  myle 
to  his  awin  house  quhilk  raudtn  i^  the  panneU 
to  be  altogidder  inexcusable  speciallie  iu  re^ 
Bpect  of  ye  actis  in  ye  parliamentis  1^67 
1681  1592  quhilk  commandis  all  sublectis 
rnder  the  pane  of  daith  to  follow  and  reveill  re- 
bellis with  hoy  and  cry  And  to  have  na  cou< 
ference  with  thame  without  command  of  yi 
s'reflTof  the  tcbyre. 

To  the  quhilk  jioynt  of  my  lord  advo 
ansV  concerning  his  Tps  distioctioun   de  bon< 
nisii.     It  wai  y*efter  doplyit  be  the  pann^ 
and  be  Mr.  Jon.  Nisl^t  his  prelo'r  That  y 
samyn  is  altogidder  without  warrand  in  law 
quhilk  speak  is  indi^nctlie  et  fipeciHce  etiam 
tie   bannitis  et  pri>f^cripti«  locis    supra   citalis 
Fanler  it  was  duply  it  that  occult  alia  being  es* 
senti^il  in  the  cryme  of  recept  quhairby  recept 
is  only  defy  net  in  the  law  most  be  lybellit  non 
solum  in  fragranti  crimine    Bot  in  all  dittay  is 
cijncluding  tne  receptm^  and    puneiscbinenl 
y'of    ft  was  also  duplyit  b«t  ye  said  James 
Gordoun  and  his  prelo^r  that  the  notorietie  of 
yc  rebellis  reMhoiin  and  prose riptioun  cai 
nfK'hi  be  obtrudit  at  leist  sa  ag^^vatlie  tlie  sai 
ailegit  ciyms  of  reosptiog  betng  sa  s«hun«' 


upm  a  Praetn  of  Errcr* 


A.D.  l6fii* 


flOff 


dYer  y*  pTOtcriptiotiD    And  last  it  wm  duptyit ;  mainslaf  tdaocat  be  the  maothetnd  judtctmll^ 


Ui«t  ye  fortune  raLic»»tiiit*r  of  Telieilis  most 
|iur^e  mtercf>nitiKiiUn|r  or  iflitet^ull  he  irbi< 
tr&rie  t«i  mak  ye  km^i^  li>)all  Hntiipclis  ijiter- 
C4»mti]0DeriB  as  is  in^taticefl  ol  lufbir  be  Walter 
Hay  And  sp*?ciallie  in  tliis  caice  qr*  ye  tor- 
tuitnes  jLtid  occiilf-mall  uu'ttin;^  %«itti  the  snidia 
itsbeltis  h  nocht  only  a%erred  be  the  |»ant)ell  btit 
may  be  ckirml  be  thre  or  foutv  unsuMpect  gen- 
ttlmen  ijubilkif  uar  preiicnt  with  the  pantidt 
und  violentlie  detenit  and  keipit  in  the-liQtiie 
with  him. 

£<\er  ihe  proponcin^  of  the  qnhilkls  alledge- 
mtioea  ansVis  and  duply  is  aboiie  writtin  The 
justice  be! Tig'  ryplie  ;.Dd  sit  length  advyss^t 
y'with  be  his  mteHiHjiiitor  gevin  and  pro- 
fiuQcet  y*antdl  repellit  the  toirsaid  alledge- 
arteea  and  iknd  and  dechiiret  That  ye  said 
James  Gordaun  than  vpoue  pannell  aucht  ta 
pa«  to  Ihe  knawkdge  of  anc  assyse  fur  inter* 
commaning  and  remittit  that  pH  of  ye  al- 
ledgeance  wittin^lie  or  udlluglie  to  w  cog- 
nocest  vpone  be  ye  said  assyse  As  the  pro* 
cets  with  the  intcHo*r  ahoue  written  pronuncet 
y'io  al  lenlh  proportts. 

Ltkiis  etter  ye  proounceing  of  ye  quhtik 
if]terk>'r  be  the  justice  ze  and  tlk  ane  of 
zow  being^  callii  vponc  resaauit  aiiome  and 
admittii  ?pone  ye  said  James  Gordoun 
Ilia  asiyfce  aa  said  is  for  tryell  of  his  guittte* 
nea  of  ye  cry  roe  alioiie*  writtin  ape'il  in 
bis  dittay  And  his  mai'tcii  aduocat  askand 
inslriinientia  y'upoun  and  for  veri6cattoiin 
and  cleiring  to  zow  of  the  pannelles  guiltines 
of  ye  suid  dittay  in  sua  far  as  did  consist  in 
facto  tjrVpone  ze  war  only  to  cognosce  pro- 
duce! judicial  lie  the  said  James  Gordotin  than 
i^pftne  panuell  his  I>epositioun  quhilk  was  than 
judicallie  rctd  in  soV  pn's  and  audience  sab- 
scry  nit  with  his  hand  As  also  repeittit  vnto 
aow  the  notorietie  of  ye  rebcJles  rebellioun 
The  hoirniogis  and  Tres  of  intercom  moaing  vset 
and  execute  in  Jaouar  last  Efter  ye  q'lk 
poblicatioun  and  inhibitionn  yHn  eirpremit 
I  be  pannell  tneti  iwyce  with  the  rebellis  s'ranea 
in  nit  awia  house  And  within  aucht  dayls 
Vcfter  within  ye  house  of  Robert  Collie  in 
HtHiewfllhs  quhilk  is  only  ane  myle  from 
the  pannellia  a  win  house  cotife&sit  be  him  ju- 
diciailie  And  thnt  he  aoupet  and  co^lerrit 
with  thame  thrt  hoVe  y^ett^r  and  Jay  with 
tlianiie  in  ane  chalmer  alt  that  nicht  his  house 
being  within  ane  tnyle  yairof  And  in  respect 
ol'soa  cl«rir  and  manifest  probiitioun  hii»tnaiesteis 
aduocat  than  protesUt  tor  wiltuH  ern»r  ai^uines 
sow  in  caice  ze  sould  acquit  or  ctancfe  the 
itid  Jamrs  Gordoun  of  ye  crynie  foirsaid  con- 
tetiit  in  his  dittay  And  trew  itia  that  ze 
all  being  yairetiir'remoyet  ftirlh  of  court  and 
ioicloaet  within  ye  assize  house  of  ye  liaid  tol- 
Nithe  and  haiftng  coosultit  and  reasonet 
vpou  (ha  fK»yii1ea  of  dittay  aboue  writtiil  re- 
firrrit  to  zor  kaaw ledge  and  del'^rnituaiioun 
And  re^eniering  agane  in  court  ze  nocht- 
mthatandiiig  of  ye  cleir  verificatioiin  and  pro- 
^balUmn  of  ye  said  James  Gordoun  his  guittiues 
9^  ye  cryiaa  foii-satd  raat  and  pi^ducet  be  his 


L 


declnrutimin     of    ye  said     Alest*    Irring    of  I 
Lenturk  chanctllef  eleciit  ami  chooaen  be  zokt  ] 
Tponc   the   said  ;issyse  all  in  ane  voice  land 
prontmcet  and  declairet  wilfalUe  be  favor  par-  ' 
tiallic  teroerariouslie  and  be  partiatl  meaaei^  I 
The  said  James  Gordoun  to  be  cltiane  innocenCJ 
ami  acijuil  of  int<brconimooiug   with  the  re^f 
bell  is  speci6et  in  his  dittay  and  depositione^^ 
wittingiie  or  willullie  at  ye  tyines  nex*ine  men- 
ttonet  yUntill     In  the  doing  qnhairof  zcand  ilk  ' 
ane  of'^zow  hes  commit  tit  wilful  I  and  nmnife<it 
at    ye   teist    temerarious    erroV    and    auch'flfi 
and  sould  he  puneist  in  zur  persones  and  guidi#' 
conforms  to  ye  bwis  and  actis  of  parliamenC  ] 
of  this  kingdome     llecaus  efler  the  alteadge^ 
anoe«  olioue  wxitrin  maid  be  the  said  Jaiueg 
Gordoun    and   his   said   prelo*r    and  ans'ria 
maid    y'to  be   his  m.iiesteis  aduocat  nathing 
being  referrit  to  zo^r  cognitioun     and  tryeU 
bot    allanerlie  the  panncllia   intercom moning 
with  the  rebelJis  at  ye  tyoMs  contentt  in  hia 
dittay     And  ynt  p*t  of  ye  alledgeance  anenf  i 
wittingiie  or  wilhnglie  to  be  also  cognoscet 
and    tryed    bt  zow     Quhilk  intercom  mooing 
with  the  qnalitie  y^of  tiz.  that  ye  sarnyn  wa^ 
wittingiie  or  wilfuUie  done  was  cleirlie  provin  to 
zow     be     ye    pannellis     a  win     depQsitione#i  ] 
Quhairby  he  granted  and  confesset  nts  inter* 
eammonmg    with  the  rebellis  at  the  tymea 
q'tenK  in  his  said  dtttay  and  in  maner  cleirlie « 
sett  down  y*inUll    And  as  for  ihe  qufllitic  «*f  | 
wittingiie  or  wilhnglie  (}'rof  aither  of   thame 
is  sufficient  of  ye  law  to  mfer  the  puneishment  j 
abrme    writtin* the    samyn       And  speciallie 
that  member  y 'of  wittingiie  was  cleirlie  proriii' 
baith   be  the  said  James  Gordoun  than  im*^ 
pannelht    his  depo<rttione$    and  als  be  ye  do«^  j 
tohetie   of  ye  rehtllioun  q*rof  yc  said  AXvai^t  I 
Leilh  and  Nathaniel  Gordoun  war  special  I  ac* 
to^ris     And  they  denuncet  rebellis  and  put  m 
ye  hornc  in  ye  moneth  of  Januar  prececding;  I 
(.iuhairhy  they  war  denuncet  at  ye  m*cat  cwc&  \ 
of    Aberdenc  being  ye  mercat  croce  of  v€  ] 
held  bur*  of  the  a'refdorae  within  ye  qnhtlk'  I 
the  said  James  Gordoun  intercommonet  w*| 
the  saidis  rebellis    And  als  be  the  Trez  direct  i 
be  the  tordis  of  aecreit  euunsall  inhiheittinf' 
and  discharge! ng  all  hiK  maiesteis  le^s  and  sub* 
iectis    inlercomniune   w't   tlie   saidis    rebellit 
Quhilkis  war  deutie  execute  and  publetsi  af  | 
ye  said  m*cat  ci-oce  of  Aberdene  vpone  the'  j 
saxt    day    of    Januar   last    Quhilkia  depo- 
sjtiounes  Trea  of  hoirning  Prez  of  intercom- 
moning  ane  executiooes  y 'of  was  producet  and 
red  to  zow     And  quhUkis  did  evidentlie  prove 
and    cleirlie  vcrifie  that  ye  intercommonin^ 
was  wittingiie  done  in  respect  that  member 
of  ye  dittay    wittingiie  respectis  onlie  the 
knawlege   of  yc  subiectis  coraroittJUjj  againist 
the  lawis    ana    actis  of  p'kament  be   inter*' 
oommonin^   iriiB.  that  they  knew  of  yt  rc» 
belliouu    And  that  the  persones  w't  qubome 
thay  intercom  mot  i«d  war  rebellis     The  quhilk 
is  cleirlie  provin  fimt  be  the  said  James  Gor* 
doun  hi»awindepu«itioun«  Nainelie  be  that  arts*  i 
cle  y*of  bearand  that  ye  satd  James  being  de»  *J 


lOT] 


33  CHARLES  II.    Prautdimgi  cgaimai  Ak».  Blair  and  otiers,    [  108 


mandit  be  ye  lordii  bis  examioAtore  quhat 
ooDfereoce  past  betuix  bim  and  ye  brokin 
men  attbat  tyrae  of  y'  being  in  Robert  CoJleis 
bouse  in  Hassiewallia  He  deponeC  tbat  be  bard 
thame  say  tbat  tbay  bebovet  to  leave  ypooe  tbe 
laird  of  Frendraucbt  till  ye  marqueis  bame 
cuming  becaus  tbey  wald  be  forced  to  lea?e 
the  couDtrey  As  abo  hard  Natbauiell  say  tbat 
he  bad  cbaiset  ane  of  Frendrancbtis  men  tbat 
day  tbre  myles  And  tbat  all  tbat  tibay  had 
tane  fra  Frendraucbt  was  spent,  and  bad  nevir 
done  tbame  gmd  &c.  And  als  is  deirlie  provin 
be  tbe  notorietic  of  ye  said  rebellioun,  and  be 
tbe  Tree  of  homing  and  intercommoning  pro- 
ducet.  Qubilkis  Sk*  tbame  selffis  ar  sufficient 
to  prove  knawledjgfe  of  tbe  rebellioun  and  of 
tbepersones  declaired  rebellis  and  of  tbe  danger 
of  tbe  law  be  intercommoning  with  tbame 
and  as  to  the  vtber  member  of  tbe  dittay  and 
actis  of  p*liament  ar'vpone  thesamyn  is  Ibundit 
oubilk  beiris  wiffuliie,  Tbat  member  (albeit 
the  said  James  Gordoun  bad  bene  frie  y'of  as 
he  is  nocht)  coald  nocbt  baif  fred  bim  Irom 
the  cryme  of  intercommoning.  The  vtber 
member  of  (wiitinglie)qabilk  per  $eia  sufficient 
of  ye  law  beinir  sa  deirlie  vehfeid  as  said  is: 
And  of  tbe  qubilk  poynt  of  intercommoning 

iwittingbe)  zethefoimamet  persones  of  assyse 
les  clauget  the  said  James  Gordoun  baith  wit- 
tiuglie  and  wilfoUie  And  Eit  to  convince  zou 
and  ilk  ane  of  you  assysors  foirsaidis  of  sa 
oppin  manifest  and  inexcusable  proceiding 
^anis  law  and  justice  and  of  zor  solempoe 
oatlie  gevin  be  zow  at  zor  ressaueing  and  sneir- 
iiig  vpone  the  said  assyse  It  is  certane  be 
the  proces  and  course  vairof,  and  writtis  and 

Srobatioun  pnNlucet  for  verificatioun  of  ye 
ittay  That  the  said  member  (wilfullie)  was 
also  deirlie  verifieit  to  zou  and  everie  ane  of 
zou  assysors  foirsaidis ;  and  tbat  in  the  daoge- 
ing  of  ye  said  James  Gordoun  y^of  ze  nocbt 
only  bail  committed  wilfull  and  manifest  error, 
bot  also  to  ye  great  contempt  of  bis  majestie 
and  of  bis  nienes  royall  autboritie  hes  done 
quhat  in  zou  lyis  to  foster  tbe  said  publiot  re- 
bellioun in  the  nortbe,  by  prodameing  libertie 
in  sa  far  as  in  zou  lyes  to  all  his  maieaCeis  sub- 
iectis  to  intercommoun  with  ye  saidis  rebelles, 
in  sua  far  as  be  zour  said  verdite  ze  baif  fund 
in  eflect  all  intercommoning  with  the  saidis 
rebellis  to  be  lau'll  vpone  the  sole  dedaratioun 
of  ye  iutercommoner  that  the  samyn  was 
nocht  done  wilfullie  but  accidentallie,  albeit  be 
the  lawis  and  actis  of  p'liament,  all  intercom- 
moning with  rebelhs  (speeiallie  be  sic  aae 
oppin  rebellioun)  is  nocht  only  prohibeit  vnder 
the  pane  of  death  bot  also  his  maiesteis  haiU 
subieclis  ar  commandit  to  follow  rebellis  and 
trato'rc  with  hoy  and  cry  and  to  present  tbame 
to  justice  And  that  all  his  maiesteis  subiectis 
do  thuir  vtter  dilKgence  at  the  vttermost  of 
yair  power  in  searching  seiking  taking  and 
ai)prchending  the  rebellis  and  following  of 
tbame  and  to  mak  intimatioun  t»  tbe  magis- 
trattis  and  to  |)erMne8  of  power  and  authoritie 
for  aDDrehendmg  of  tbam  to  be  broght  lo  ju»- 
4  iial  natM  interacNDBMiu  wiita  the 


rebellis  vpone  ony  pretext  without  tbe 
warrand  and  knawkdse  of  ye  s'reff  and  judge 
of  ye  contrey  sua  that  aU  intercommoning 
most  be  wilfull  Qubilk  is  done  aganis  the«xpres 
ordour  prescryuit  be  ye  saidis  actis  ofo'liameolip 
And  spedallie  aganist  ye  actis  in  December 
1667  October  1581  and  June  1593  quhiDcis 
war  quotted  and  alledffit  to  ye  justice  and  to 
zow  as  assysors  and  uie  samyn  deirlie  verifeit 
to  be  so  be  the  said  James  Gordoun  his  awin 
confessioun  in  so  far  as  in  his  depositioDea  hm 
grantis  and  confesses  his  intercommoning  with 
the  saidis  rebdlis  in  his  awin  dose  at  quhilk 
tyme  he  was  obleist  to  acquent  the  s'reff  or 
some  judge  of  thecountrey  of  yair  being  im 
that  part  of  ye  s'refdome  Ami  as  to  his  in- 
tercommouinr  witli  thame  in  Uassie-wallia  ha 
hes  deponet  That  about  aucht  dayis  after  hk 
mdtting  with  the  saidis  rebellis  Nathaniell 
Gordoun  and  Alexander  Leith  with  tua  fata- 
men  come  to  Robert  Collds  house  in  Hanie* 
wallis  the  marauds  of  Huntleyis  landia  q'r 
the  said  James  Gordoun  (impannellit)  and  Hu- 
bert Forbes  brother  toye  peraone  of  Auohterlea 
Robert  Dempster  of  Cfuschnie  and  Robert  Coi- 
liesone  burges  off  Abirdene  war  the  tyme  and 
had  bene  yair  half  ane  day  of  befbir  And  that 
Nathaniell  and  Alexander  Leitb  come  to  this 
house  about  nyne  ho'rs  at  ny't  and  that  he 
(viz.  ye  deponer)  and  hiscompanie  soapped 
witli  tliame  that  ny't  and  remanet  with  thamo 
about  thre  ho*r  bdbir  tbay  went  to  bed  And 
that  tbe  conference  that  past  betuix  the  de« 
poner  and  the  brokin  men  at  that  tyme  wee 
that  he  hard  thame  say  that  tbay  behoreC  to 
leave  vpone  the  laird  of  Frendraucbt  till  ye 
marqueis  bame  cuming  becaus  tbay  wuld  M 
forced  to  leave  the  cuntry  than  And  that  he 
bard  Nathaniell  say  that  ue  had  ehaissed  ane 
of  Freudrauditis  men  that  day  thre  myles  and 
dl  that  they  had  tane  firae  Frendraucbt  wa» 
spcndit  and  had  never  done  thame  giiid  And 
deponet  that  ye  cause  qrTore  Nathaniell  chaaei 
Frendrauchts  man  as  he  affirmed  to  ye  da- 
uoner,  was  becaus  he  was  the  s'reffis  spj 
Deponet  lykwayis  that  Nathaniell  Gordomt 
hau  tuo  lang  pislolettis  and  ane  gwn  And  that 
his  roan  had  ane  pistolett  and  yat  Alexander 
Leith  had  ane  gwn  and  ane  pistolet  Deposit 
also  that  the  ny't  tbay  war  in  Robert  CoUiee- 
boose  the  deponer  auu  Robert  Dempster  lay  m 
ane  bed  and  Nathaniell  Gordouu  and  AleOLander 
Leith  lay  m  ane  vy'  bed  in  the  same  chdmer 
as  ye  said  deposilioun  beiris  Lyk  as  ye  said. 
James  Gordoun  than  vpone  pannell  gprantit  hk. 
judgement  qV  vpone  his  ma'teis  aduocat  tnik 
instrumentis  that  ye  said  house  of  Haaaie- 
walliB  was  within  ane  myle  to  his  awin  bouae 
duhairby  it  is  evident  that  ye  said  inleroin»- 
moning  was  wilfullie  and  in  grit  contempt  of 
his  ma'teis  lawis  and  au'ctie  necaua  this  waa. 
tlie  secund  tynse  of  his  meitting  with  thame 
efier  the  first,  and  was  within  ane  myle  to  bia. 
awin  house  Sua  that  he  my 't  baif  retired  him- 
self to  his  awin  house  that  ny't  and  schwuncd 
y'  coaspania  qMk  be  did  nocht  hot  be  the  coa- 
tcair  aoapped  with  thaiBe  and  dlir  supper  eot^ 


mp4m  a  PrcuM  of  Err$r, 


A.  D.  l6at* 


[!!• 


» 


fomd  with  Uiiffi^  llire  hoV  And  yVAir  ky 
in  atM3  cihuliiK^r  wttK  thftmequhilk  if  oU  eon- 
femi  in  hin  abtnif  writtin  depcinitiuun  Aiitl  qV 
Bfl  il  [fTiiv  a|»|icir  ttui  the  aII^o  maid  fur 

ye  Jiaid  /utnex  Gordauo  titien  t  I  of  in- 

tMVOI^unociitig  will'iiliie  wm  refumeil  he  the 
JuitilM  lo  J*  ftstyte  that  can  be  na  cuHoV  nor 
^feltst  to  firii  sou  or  anv  of  Xfiu  as  tuis^sors  of 
MfiuNe  tmd  eool^mpi  of  his  ma'teis  autboritie 
Becaiis  all  that  was  altegii  he  the  paondl  and 
be  Mvr  John  Nishet  hit*  preloV  was  that  the 
ditiay  was  nawayis  relevant  inferriiifi^  capital  I 
jiwiiebchiiieiit  vpotie  intercomaiootritr  because 
II  m  ttocbt  foujidit  vpone  the  act  or  parliament 
moit  rpone  the  commoun  law  Nather  h  it  re- 
JstaotNe  mbitiniet  y'intiJl  that  wittiDgUe  and 
willinglie  the  panQeU  intercom mon^  And 
miie  occasotiall  rancounterin^  ean  nocht  itn* 
poi8t  aoe  aoceBioun  to  yair  rebeltioaa  qu'hao 
|i^teis  ar  surprysed  with  lb  air  cuming  to  yair 
awin  housii*  or  to  vtber  places  quhnir  tbay  ar 
and  can  nocht  clisiogadge  thumsclHis  of  yair 
eova^nh  hr  feir  or  trritatine  of  Lbame  as  is 
*  b^  Walter  Hay  anil  James  Grant 


And  ID  v^  present  caice  as  the  pannell  hea  de* 

ponettBat  he  had  bene  in  Robert  CoHeis  house 

in  UiBtie-v%allis  with  Robert  Forbei$  brother  to 

ik0  pcfioue  of  AuckterTes  Aobcrt  Dempster  of 

CiMOhoie  and    Habert  Collif^fone   bitrges   of 

Abirdene  all  rnsaspect  and  honest  men  half 

ane  day  betoir  the  ret)etliscuTning  to  the  house 

<|ubi]k  cuiiiiiijBr  ^^  y^  rebellis  to  ye  said  house 

wai^  at  uyne  ho'r  at  ni^ht  q'n  the  pannell  could 

BOcliI  goe  els^  q'r  bemt;  benichted    And  the 

ivbeltit  l«ry*  securitie  baiting  schota  and  maid 

fittt  ye  durris  of  ye  said  bougie    And  as  to  that 

woru  *■  conference^  mentioned  in  the  dittaj  the 

lyn  is  nocht  relevant  to  impoirt  intercom- 

iog  vules  it  had  bene  suhsumet  y  *  in  that 

nell  had  treittet  with  the  rtWUis  con. 

\ng  y  *  rebcUioim  tbair  rehetlious  practizes 

rnf>'  of  purpois  to  help  and  liuio'r 

ine  to  ye  act  of  p'l*Hment  qiibilk 

II  reception  snppUting  and  man- 

i«iung  of  rebel  lis  and  ^eneraliie  all  doing  of 

liuoV     And  the  law  jovne?  **  conversantes 

tractantes  euro  baunitiM  ve  prestaotcs 

complexe"   Pbar.  <[uesL  >ti.  172.  Last 

I     •*  conveniatjo  el  tractatio  cum  icheliibus  ffunt 

»    f«rlm  frfquetitmioH'*     And  y* loir  can  nocht  be 

LflbAumet  rfi^  caist  tua 

K^kftsiouall  HI  ite  said 

^^■■cptioun  b«'iri<^  i^  Ka>  y  ^'i '  !in 

^Hpftssnid  exceptioun     it  w  ^)tf 

^IBld  Mr.  Jabnne  Ni^ibel  to  liiL  im^  i  uiuiu  b*f 

bis  .MttieMriH  Aduocat  Tliat  the  distinctioun 

tnatd  be  hi^rpi/f  ^,.,r...>ti.r  w^^  .,ii,»,T,,i4,T.  with- 

I     oat  warranilm  Uu  tUe**et 

I       SlM^'itHT-  rlinrn    *!*■  is,    loCIS 

1^1  iiat  OC' 

ctii't'  i  recei»t 

qVby   i\: 


most  b' 
Lot 


h«  tilt:  5.*U!i  ,Mi,  Juhaai;    Lliiit  Xhti   iioloricUL'  ul 

Itic  ccbcUU  f^bdlioua  aud  prgscnptigau  (;ouid 


nocht  be  ohtmidit  at  hist  «b  ft^fgrnraflie  th«  it-* 
ledpt  oryii»#  of  yair  rcceptmg;  l^ng'  mi  sehorti 
et^ir  yair  proscnptioiin  And  loi^t  the  fortuit* 
rancounler  of  rebellis  moot  purge  intenooin* 
inonini,^  or  elUs  it  sail  be  arhitrarie  to  malt  th« 
kinf^iH  loyall  tiibiectis  intsrconifnoiivTis  av  wat 
instaneetbe  Walter  Hay  And  especiallie  lA 
this  caice  q^-  the  fortuittK-s  ocddentiuJie  of  yai^ 
mdttin^  is  noclu  ooly  Hv^sired  be  the  panneU^ 
hot  micht  be  cleired  be  th  re  or  fnire  msuspect 
gentilmeti  quha  war  psesent  with  the  pannell 
and  violcntlie  keipit  and  dctettit  in  the  bous* 
with  him  as  at  lenth  is  coatent  tn  the  sRl<f 
dittay. 

Uuhilkis  aUedgeanoei  gifand  the  Ktimyn  \m^ 
bene  Feleiraot,  as  thay  war  nocht  t)k  as  tike 
jad^fes  in  effect  hes  fund  the  samyn  oochC 
releraot  In  sa  far  as  they  repellit  the  aU 
ledg^eance  ifi  jtir«  And  referrit  the  fnict  an<f 
deid  to  ssor  ci^itioun  as  assrsors  and  judg«f 
y'to  Nather  was  yair  ony  thing  producci  b« 
the  psDoel  tiz.  James  Gordoun  or  be  bis  pro'n 
before  the  sweiring  of  -zou  as  assyKors  or  t^ 
and  befoir  yon  efter  *e  %rar  sworoe  befoir  zor 
remofeing  out  of  judgement  to  rerifie  thai 
poynt  that  he  was  compeillt  or  that  y« 
durris  war  9cbote  and  made  finrt  Sec  AncI 
tbairfoir  ze  and  ilk  ane  of  zou  as  assysor* 
was  iu  law  aath  and  conscience  bund  to  bav^ 
judged  acoordbg  to  the  d«po0ilii»oea  ami 
veriticatioiica  producet  bo  bis  ma'ties  ad«, 
uocnt  Quhairby  the  said  James  Gordoun  hia 
wilfull  intercommomo^  waa  aufficientlie  w€ji* 
feit  to  zou  as  saldis  nor  zit  was  it  ^lossifal^ 
to  ye  said  James  Gordoun  than  vpone  paanfll 
or  Uh  prelo're  lo  produce  ony  vertticatioutii 
for  cleiring  of  that  [M>yot  or  g^if  he  hadi 
producit  ony  (quhilk  was  not  done)  his  I^la'tieci 
Aduooatas  per«ewiu-  wald  baif  cleired  thai  thtt; 
samyn  could  nochl  had  verifeil  that  j>oynt  i^ 
that  ye  said  James  Gordoun  wa«  furcel  o^ 
compellit  becaas  it  is  (^ranted  in  ye  said  J 
Gordouu's  de|>osiiiones  that  yair  wat  fviti 
by  the  g^idoiau  of  ye  house  and  histerr^ 
thre  vtberis  persones  viz  H^jbert  Forbes  bro^ij 
ther  to  ye  persooe  of  Auchterlcs  Robert  J 
ter  of  Cuschnie  and  Robert  CoUusone  _. 

Aberdene  Q,uba  being  ane  number  of  persones 
about  six  or  sevin,  or  mais  accainlln^  t#  ye 
nuoibcr  of  the  servamlis  of  ye  houM  the  naiiK'' 
berqVof  was  wdll  knwvria  lOfxiirtol'jcou  that* 
war   vpoce  the  said  aasyse  eovild  nocht  hail* 
betie  forced  be  ye  saides  ttia  rsbeilis  <:>r  gijti 
tbay  bad  forced  tbame  i»  eoliMttinjBr  o^  Y^  J 
durris    and  keipmi^  the  kreto  y'awin  handie>y 
The  said  James  Goidoun   and   remanent  per* 
sooM  beings  with  him  warobleist  in  law  as  Ipui4^^ 
and  fakbrull  tfubwotis  te  hatf  aent  out  ana  ( 
be   tpe  privat  way  or  wieddw  and  le  hi 
y^by  f^evm  adrerteismeut  to  tho  lycntlewieii 
ve   cuntrv  neirest  abc»u«  olT  yo   taid<l 

Ik  my't  haif  henet^iHalie  dotift' 

.;,^  to  bed  nnd  mmr  ejwjdic  eftir 

^vttr  tn   yn  '  '  y*in 

V  war  buiJ  tifUr 

rcbellis    yuir    nvrav  ,    y^ 

\ :  ,  fui  tb  of  ye  tM  hou  A* 


nn 


35  CHARLES  IL     Pr&teeiing$  against  Alex.  Blair  and  others, 


t«rTed  tiie  way  quhair  tbay  weol  and  to  hnre 
raised  the  counirey  and  tjr>  have  follow  it  thame 
be  boy  and  cry»  quhilk  thay  did  nocht  liot  its 
is  granted  be  ye  said  James  Gorfjoon  Id  liiii 
depoaitiouD  thai  he  tuik  na  heid  of  ^air  pairt- 
me  or  away  paflsiog  In  the  rooirDini^  Be  the 
quoilk  dednctioun  circumsiancei  deposuionea 
sndftfaeriB  befoir  deducet  it  was  maist  cleir 
«nd  manifest  to  zou  the  saidU  persones  ressauit 
auome  and  admittit  ifioae  the  said  James  Gor- 
douB  his  iiitercummonin^  aboue  written  wilh 
tlte  saidts  rebel  lis  was  wrifuliie  done  be  him 
expres  aganis  the  (awis  and  actis  ol  pMiament 
and  prt)cramationes  publeist  in  the  cootrarr 
And  thairfoir  yefoiroamet  persones  suoroeand 
admlttit  ?poiie  his  asayse  tii  sa  tar  as  ze  baif 
clanget  and  acquit  ye  said  James  Gurdoim  of 
yejiaid  poynt  of  wiUViIJ  tntercominotiiD^  bes 
OOeht  only  incnrrit  u  itfull  and  periiirious  error 
affani!»t  the  Ucbt  of  zo'r  awin  consciences  bot 
ft  wo  hes  com  mitt  it  aue  grit  contempt  ngiinist 
I  his  nia*l^e  and  his  bienes  au^ctie  And  y 'throw 
hes  incorrit  the  pane  and  puoeisbmeDt  sfie'it 
and  set  doun  in  tbe  autd  law  is  and  actis  of 
p^Iiament  of  y  is  kingdome  Qubilk  auch*t  and 
60u1d  be  execute  aguuist  zou  and  ilk  ane  of  zou 
in  maiat  exempkre  maner  to  the  terror  of 
Ytbcris. 

Thaireftir  my  lord  Aduocat  producet  an  Act 
©f  yeLoTtlis  of  secreit  connsalJ  of  the  daitthe 
first  of  December  W^5  no'iatiojjf  and  appoyol- 
mg  John  eric  of  Tr'quair  Archibahl  lord  of 
Lome  Williame  tord  Alexander  and  sir  John 
Hay  kny't  clerk  of  reg^s^er  or  ony  tua  of 
Ihame  to  be  assessore  to  his  maiesteis  justice 
in  this  proces  of  eiTo'r  p'sewit  a^nis  ye  per* 
sone^  on  panoel  at  ye  instance  nf  his  raa'ties 
aduocatflbr  tbe  erro'r  committit  be  thame  in  ye 
temerarious  and  wiJfull  clangeing  of  James 
Oordoun  of  tnterconmioning'  with  the  rebel  I  is 
q^tenit  in  his  dittay  Lyk  as  tbe  saidis  John 
erle  of  Traqaair  Archibald  lord  Lome  and 
Wm.  lord  Alexander  being  judiciallie  present 
accfptit  ye  said  charge  as  assessors  vpon 
tbsune  to  his  matestels  justice  in  ye  niatter 
alioue  writttn  QVrpone  my  lord  aduocftt  askit 
iastrumentis. 

Tbe  said  Mr.  Thomas  Nlcolsond  adwieat  as 
aoe  of  ye  prelo'rs  for  ye  pa  on  el  cotnpeml  also 
for  Alexander  Key't  of  Dnffiis  as  proV  for 
him  and  orotestit  yat  ho  my*i  be  hard  lo  pro- 
pone bis  lau'U  defence  vpone  the  order  [ire* 
scrvuetbe  tlieactof  pNiament  vii.  Tliat  ve 
said  Alexander  KeyH  of  DnfTus  can  nocht  (for 
his  nocht  eompeirance  Ibts  day  w4  ye  rest  of 
ye  i>eriQlies  of  %mym)  he  laulie  domet  nor 
adiildji>^t  to  be  put  to  ye  borne  hi  rt'Sjiect  he 
was  niK'bt  charget  nor  ceittetl  to  com|>eir  Ijefinr 
yc  lor^is  of  secreit  couiuuiU  as  ye  rt^t  of  ye 
asij  6or  cumfieirand  war  diet  and  rharget, 

Tlmird^ir  the  panne)  and  ye  prelo^rs  befoir 
'  «l  betoir 


no 
kd 
yair 


drij^r 


rony  1 


'  proc^ 


better 


this  cans  that    ye  aii)di!»  preJo'rs  for 


jiaratiouu 
'  '^  ^bttay  [iraducet  ami  red  may  baii^yo  ooppie 


to  anH  r  to  ye  poyntm 


y'of  atid   ane  tyme  afTixt  to  thame  to 
y'to    My  lord  Aduocal  decJairet  that  in 
of  ye  productioun   uf  ye  dittay  and  publt^ 
rcimn!,'  yairof  in  judgement  in  sudieiiceof  m 
lord  justice   and  j>ersonea  vpnoe  pan n el    ani 
that  v*eftirthe  pauuelis  preUVrs  schwnc»  pre- 
sent disputatioun  and  craves  line  c«»p|)ie  of  y< 
dittay    My    lord    Aduocat    y'loir   and    to   y 
effect  the  preloVs  tor  the  panoel  may  be  pre 
pareti  to  aosweir  without  farder  delay  nor  ibn 
ciuhilk  ye  justice  sail  be  pleiset  to    L^mnf  r 
tua  me    at   this    tyme  produces    th 
crimioall  q*r  in  James  Gorduun  is    i        /    t 
to^ddcr  with  the   haill  urittift  qVvpone   tbi 
fTttoinall  dittay  is  foundit  and  .vpet  iulhe  lli 
said  James   Gordoun  bis    depositiooea     Tli 
tua  l*rez  of  hoimeng  qr'by  he  was  dcnuiiei 
rebel  I    Tlie  Trez  of  mtercomruoning  qr'by  a 
ye  subiects  war  inbibeit  to  iniercomiuoiin  will 
the    rebelUs    And  y'ut  repeittis  the  actis 
pMiament  Ja.  the  (yt^  parbamento  7«  cap,  9r, 
Jacobi  sexti:  par.    l,  cap,  21.  And   par.  19|] 
cap.    144,    in  anno   l/iOi  ^Quliilk    war    tin 
groundis  qr'  Tpoun  James  Gordoun  was  pan 
nellit  and   accuset    and   nocht    w't   standin; 
y'of  clenget  And  y'foir  desyrct  that  my  loi 
.justice  wald  oyer  grant  present  proces  or 
he  gi-ant  or  int^lyne  to  on^  continuatiami  t1 
it  may  be  with  this  certiticatioun  that  yai  sail 
baif  iia  farder  delay  Tpone  Che  sight  of  j% 
writtis  now  produced  and  rejKittted.  ^ 

Thejustice  contioewis  this  dyet  to  this  da) 
aucht  dayis  qlk  is  ye  nyntof  yb  nisiant  monctli, 
of  December  Ami  ordanit  ye  nersones  euteril 
?^*one  pannel  this  day  to  fynd  cau'un  tor 
entiie  that  day  ilk  pcrsonc  viidcr  ye  panetl 
q'tenit  in  the  former  act  viz.  of  ane  tboiiBiiji4| 
merkis  mooey. 

The  persones  of  assysesnmmond  to  this  day 
wamit  apud  acta  ilk  persone  vnder  ye  pane  i  **" 

s^m  m'kis  money. 

Compifired   Mr.  Wm.  Gordoun   appeirai 
of  Strain che  and  become  souertie  for  euirie 
ye  said  Alexander  Irwuig  of  Leniurk. 

Mr,  Robert  Reid  bur£^  of  Ab*d'  for  enti 
of  Alexander    Ranerman  of  ELsick  and  Mr«j 
Matbow  Lumisden. 

Haiie  Gordutm   in  Glassach  for  en  trie  of 
John  Ogilvie  of  Glassacbe. 

Mr.  James  Cheane  wryter  ffer   cntrie  Hf 
Goorge  Gonloun  of  Tilliechowdie  and  WiDj 

beaiounot' 8c!»elhyn. 

Adame  Abercrcmbie  fcr  entrie  of    Hector 
Abercromhit»    of    Fetterneir  his  brutlier 
J4ime&  Seatoun  burge^ot  Aberdene. 

Robert  Banermafi  in  Elsick  for  entrie  of 
Slid  tJhairk'S  hteivu)  buige.«4  of  EdmlMStirli  [i 
Aberdeen]  the  &aid  nynt  day  of  l>eoeiiiJ 
lostant* 


^ 


US] 


mpon  a  Procem  tf  Error. 


CuRU  JusTiciARiE  S.  D.  N.  Regis  Tenta  in 
pretorio  ile  EdV  nono  Det^bris  16.05 
Per  Maflr'ros  Alexanttrum  Coluile  de  Blair 
eC]  Jacobum  Kobertoun  adnucatum  As- 
Bfcjsores  Justiciario  John  Eric  of  Traqiiair 
Dauid  Erie  of  Soutbeak  Arcbiiwld  lord 
Lome. 
Iniran* 

AssYSE  OP  Error. 

Alexander  Irwingy  of  Lenturk. 

Alexander  Banerman,  of  Eisick. 

BIr.  Mathow  Lum'uden^  bnrges  of  Aberflene. 

Johm  Ogiivie^  of  Glassiche. 

Wm.  Seaiflun^  of  Scheatliyn. 

George  Gordoun^  of  Tilliecbondie. 

Hector  Abercrombify  of  Fetter-neir. 

James  Seatoun^  burges  of  Aberdene, 

Charles  Stevin  Utster^  burf^  y*. 

Alexander  Abercrombie^  of  Birkiaboig. 

George  Gordaun^  of  Newtoun. 

Alexander  Le'Uhy  of  Duffus. 

Dilaitit  of  ve  vilfiill  errors  committit  be 
Ihame  in  ye  clangeing  partiallie  and  wilfullie 
of  James  Gordonn  sone  to  George  Gordoun 
of  LogyaltouD  of  intercommoning  with  Alex- 
ander Leith  and  Nathaniell  Gordonn  rcbellis 
of  je  north. 

JPerfAFar.— Sir  Thomas  Hope  4i  Craighall 
kny't  his  Maiesteis  Aduocat. 

Prolocutortfor  thepanntl. — ^Mr.  James  Baird 
Mr.  Thomas  Nicolsoue  Mr.  John  Nisbet. 

My  lord  Aduocat  producet  ane  act  of  spcreifc 
counsall  qr*by  Dauid  Erie  of  Sonthosk  is 
no'iat  and  adioynet  to  the  asscsso*rs  fiirineriic 
appoyntit  for  assisffiig  the  instice  In  the  prorrs 
of  error  dei)ending  befoir  him  daittit  thciucht 
dav  of  December  instant  vpone  the  pn>diictioun 
qr  of  .and  of  my  lord  of  iiikiutheaik  his  persoiiall 
p'na  and  acccptatioun  his  uiaiestcis  aduocat 
atkit  instnimentis. 

^'  The  persones  enterit  ypone  pnnnel  befoir 
nolat  askit  instrumentis  of  y' entrie  this  day 
apeciallie  Alexander  Abircrombie  of  Hirkin- 
Doit;  George  Gordoun  of  Newtoun  and  Alex* 
ander  Keith  of  Duflus  and  protestit  for  ye  cau- 
tioneris  relief. 

My  loi-d  Aduocat  befoir  ony  fanler  di8])utft- 
tioun  vpone  the  dittay  nrodncrt  and  red,  pass* 
fra  that  pairtand  article  y 'of*  wilfullie'  »  pro 
'Jocoet  tempore'  And  dt'cl.aires  tli:u  he  insist!:* 
only  yjionc  tliat  vther  pairl  of  y o  ditfay  «|r'by 
the  itersones  that  war  vpon  James  G<»n1on('s 


A.D.  1681.  [114 

Mr.  James  Baird  for  himself  and  in  name  of 
ye  rest  of  ye  pannellis  prelo*rs  protestis  that  in 
cnice  my'lerd  aduocat  vse  ony  fanler  prolKi- 
tioun  be  writt  aganis  the  paniiel  for  proveing 
of  yV  errors  nor  qu hat  Mas  producet  at  ye  last 
dyet  that  ye  samyn  may  be  sene  and  consid- 
deret  be  ttiame  befoir  his  Tp  propone  ony  thing 
y*iii)0un. 

My  lord  Aduocat  declaired  that  he  vsed  the 
writis  producet  the  last  dyet  of  yis  proces  and 
now  repeilted  be  his  lo'  with  the  actis  of  pTui- 
ment  q'rvi)ouii  the  dittay  is  foundit,  for  ye  fall 
verificatioun  of  the  dittay. 

The  pannel  declairis  that  yai  accept  the  as- 
sesso'rs  no*iat  to  his  maierfiteis  justice  w'thout 
ony  objecti(»im  that  may  be  propooet  be  thame 
in  ye  contrair. 

it  is  alledgit  be  Mr.  James  Baird  for  ye 
pannel  that  ye  dittay  is  nawayis  relevant  to.  put 
the  pannel  to  ye  luiawledge  of  ane  assyse  for 
ye  enour  lybeilit  Because  it  is  nnther  snb- 
sumet  in  tlie  dittay  nor  proven  that  the  pannel 
now  stamling  in  judgment  hauc  acquit  the 
former  pannel  for  private  respect  be  faTor 
or  be  partiall  meanis  w'tout  the  qlk  war  sub - 
sumet  and  provcin  the  dittay  is  nawayis  rele* 
vant  bcsydis  that  the  act  of  parliament  maid 
be  king  James  the  thrid  of  eternall  mcmerie 
gois  vponn  the  same  groundis  viz.  the  ancht 
parliament  evin  so  the  same  rewle  is  kdpit 
and  hes  bene  keipit  fhir  many  zciris  by  gane 
w'tin  the  kingdome  of  England  Albeit  for  j-e 
maist  pairt  ye  Kamyfi  dois  oecure  in  civde 
buflineH  as  is*  rioir  be  yo  t\ientie  ane  statute 
-maid  Iw  kinjr  Henrie  ye  sevint  in  the  cllcvint 
/.?■>! r  of  his  re^ri'nie  .^nd  be  ye  thrid  statute 
maid  be  king  l-fcnric  ye  aueht  in  the  twentie 
thrie  7%-'ir  of  his  rigi  me  and  be  ye  twentie 
Hve  statute  maid  be  ^uenc  Elizabethe  in  the 
threttenc  zeir  of  hir  rigi'mc  be  all  thease  actis 
and  statutis  the  grand  jure  hes  only  power  to 
try  and  cogtios*  give  any  of  ye  first  jure  had 
ressauit  any  sowmes  of  money  rewairdis  or 
promeis  ot  guid  dead  done  to  yame  setfHs  or 
to  any  vther  to  yair  beliuiff  for  ye  verdeit  and 
na  vther  wavis  This  is  Ivkwayis  clear  be  ane 
statute  maid  in  thedayisot'Edviarde  thethride 
in  the  threttie  lour  zeir  of  his  rigi*me  that  ye 
gi'and  assyse  q*l!v  is  our  fyvc  and  tuentic  hes 
only  power  to  cognos*  and  try  giue  ye  first 
assyse  hes  \ytne  br\  bit  as  said  is  q'lk  being  nay' 
qualefeit  nor  prcvcin  is  nawayis  relevant 
igitur,  \-e. 

It  is  aildtl  be  Mr.  John  Nisl)et  that  ye  dittay 
sua  far  as  it  sultsuines 


IS  nnwayiv  rrMcvant  ni 
assyse  ar  pannellit  for  clangcing  yovuiil  Jsmics  ;  g'nVillie  that  yrpnnnall  lies acquittwilfullic and 
of  intercommoning  and  conference  Mittinglie  i  te[nfTnriouf;li(;  be  partiall  mennis  or  favor  And 
vith  the  rebellis  and  insistis  ng::nls  thame  us  -  condL'scv-ndit  not  vponn  any  niranis  or  niotivi.'S 
haifing  clanget  the  said  James  wilfullio  par-  i  of  pnrtiuiiiie  nrf:i\or  nor  vpoun  any  practizer 
tiallie  at  the  leist  tenicrariouslle  and  takis  in-  i  or  rorrujitcr  and  iiidr.cer  to  partialitie  nor  be 
strumentis  of  the  reiding  of  yo  dittay  and  of  Iqnhais  favovc  th;«y  have  bene  misled  without 
the  writtis  producet  be  his  h/    at  ye  last  dyet  '  yoqiihilk  t-onduHcendiiiir  ye  gfntTtilitie  of 

for  verificatioun  of  ye  same  viz  the  act  of  par-     •-'    *'    -■ *■     ■■■■     *-.-:.— 

liament  king  James  the  tift  par.  (!,  cap.   97, 
Jacobiti,  par.  12,  cap.   144,  with  ihe  drpnsi- 
liones  of  James  Gordoun  and  the  I'rcs  of  in- 
lercommoning. 
VOL.  Xi. 


ye 

IS  inatrpt  qiiiu  accMisatwrius  Libellus 
ceitilndin"  •i()nnni!t!-.  ( t  It-.indus  venit.  Battan- 
der regain  sj'\tji ;  ctoiuiips  liMlistas  de forma 
libell  cviininaJis ;  vi  le|^e  in  cnnsis  criminalibns 
Cod.  dc  accusationibuy ;  ct eximiaglossa  sccreta- 
I 


115] 


S3  CHARLES  11. 


f  ium  ?bi  forma  libelU  criminalis  proponitur ;  ct 
in  crioiiuibus  non  vaj^andum  :  Lege  decima  ff. 
tic*  flolo  malo  ^*  et  accusator  non  debet  vagari  cuip 
eAistimatiuDC  alia  iu  discrirnine,  sed  certuin  di- 
cere.  Lege  si  in  reum  ;  ff.  de  rei  vindicatione  et 
in  criuuiiibus  coiuplexis  et  coirelativis  vt  adul- 
terio  >bi  adulter  et  adultera  et  repetundis  et 
barratria  et  corruptione  judicis  per  sordes  vel 
^ratiain  uberiorum  |ieue  et  comiptus  correlata 
aunt,  uon  tautuiii  locus  et  tenipus  ezpriiuide* 
U.'nt  ill  lil)ella,  sed  et  persous  cum  quibus  com- 
niunioiie  criiuinis  compUcantur  rei  Lege  li- 
bcliuruni  tit.  de  accusationibus  ut  io  Ibrma  li- 
belii  de  corruiitioiie  judicis.  Amideus  —  De 
Custello  ostcndit  in  tractu  de  Indicatu.  Thairf'oir 
Being  ye  crime  quhilk.  is  the  subject  of  ye  law 
is  not  errour  simplie  quhilk  is  incideot  to  ^« 
uiost  iniioceut  and  iu  law  and  seoce  importith 
n.'¥f;uilt  bot  yewilfuU  depravatioun  of  assys'ors 
be  favor  anu  partiall  meania  And  ye  assys'ors 
ar  to  cognos'  and  delyuer  not  so  much  of  error, 
as  of  ye  qualitie  of  it  qubither  partiall  or  wilfull 
be  lk?or  or  partiall  meanis  A  g'nerall  as- 
aumptioun  of  fa?or  and  comiptioun  cannot  pas 
to  ye  knawledge  of  ane  grit  assyse  And  the 
pannell  cannot  be  prejudget  of  ye  defence 
quhilk  wald  result  pregnantlie  vpoun  ye  con- 
descending of  yc  practizeris  and  meanis  of 
partialitie  and  motives  qr'with  ye  pannell  hes 
bene  misled  viz.  Thai  ye  pairteis  consescendit 
vpoun  be  partiall  meanis  or  practizes  and  favor 
to  hauc  corruptit  ye  pannell  was  not  of  that 
estait  as  to  have  corruptit  yame  nor  of  yat  pre- 
dominant favor  as  to  have  iuvaigled  fyltene  men 
in  wilfull  inniquitie  and  to  haue  maid  tbome 
conspyre  in  the  most  attrocious  and  impresa- 
mable  cryuienixt  to  that  a^nis  ye  Uoly  Gost 
quVith  It  is  alhnost  coincident  viz.  a  wilfull 
opposcinp^  God  and  conscience  quem  Cicero 
an{)ellat  ^'  Drum  Tel  sultcm  doroumDeiquonibill 
divinius''  ]>c  OtBciis  libro  tertio.  And  all  de- 
vynes  ^*  vuluntatem  Dei  revclalam  si  non  mate- 
naliter  saltern  formaliter  ct  interpretative  quia 

iuud  cuuscientia  dictat  fcub  ratione  voluntatis 
^ei  dictat"  Amesius  de  Conicientia  cap.  4. 
Ai^auist  ye  quhilk  it  cannot  be  presumet  nor 
rclevantiie  aftsumct  that  any  man  erres  be  fa- 
vour or  partialitie  without  some  apparent  or 
lybellit  motive  And  the  cousonancie  of  our 
biw  with  ye  statuttis  of  Ingland  vrgt^  be  Mr. 
James  Baird  is  constant  lie  }eact  of  parliament 
anent  ye  uuth  uf  uss\  s'ors  that  they  suU  nather 
luk  bud  nor  mcid  'J'lie  cuuiravencing  of  ye 
quliilk  tiiilic  lu'c-aicry  vit  be  ye  act  uf  parliament  is 
tiiiu/ar'tum  juramtiilutn  and  not  q'  a  man 
del}uc-rilU  accoirdiug  to  his  knawledge  albeit 
et-roiiiouslie  Ik'caus  in  luw  and  the  cnstome 
of  all  UHtiutit-s  the  cunciptiuun  ami  ineaneing 
of  ye  o:irlii'  of  juii;^-esis  only  **  (>uo(!  jtsdicabunt 
U(»u  quuil  jusiiiis  ci  iiiulius  austiticie,  sed  quod 
justius  et  mdids  ipsis  visum  fuciit."  Lege 
J 4.  Cod.  de  JiKhciisi.— "  lit  jud<*x  tcuetur 
tantum  bi  scii  nttr  I'uliit,  (|iiia  in  bciontia  nmlta 
versutur  iu  \ita.'^  Ciceio  Lib.  4.  Acadeuii- 
caruni  quL-ktionum. 
Secuudo,  the  dittn y  is  nawayia  relevant  iusna 
'^i^'uii^ru  tit*  ^iil^ul2  aud  timerarious 


Proeeedingt  Bgaimi  Ales.  Blair  and  otheri,    [1 16 

delyuerance  and  depravatioan  of  aasyseowria 
be  the  material!  error  and  allet'  inniq^uitie  of 
y'  verdict  Becaus  in  law  it  is  a  paralogisiDe  to 
argue  from  errour  and  ignorance  to  cry  me  and 
from  the  inniquitieof  y  e  sentence  to  the  iunii^uitie 
of  yejudge  **  quia  aententia  potest  esse Iniustm 
ex  ammo  ^roferentis,  et  justa  ex  online  etoansa  ; 
et  contra  justa  ex  animo  sed  injusta  ex  caosa: 
Decret:  Causa  secunda  quest  tertia"  CanoiM 
62.  And  error  argueth  ignorance  in  inielUetu^ 
and  not  in  justice  in  wfmi^M  et  voluntate,  qa« 
maleficia  distinffuit  non  autem  exitus  et  Te- 
ritas.  Lege  Divi  Hadriani  ff.  ad  Legem  Cor- 
neliaro  de  Sicariis:  Et  non  omnis  injuitum  ali« 
quid  dicens  vel  fadens  est  iniustus.  Arist  Lib. 
5.  Ethicor.  Cap.  6.  Et  qniupiam  ex  iaten- 
tione  et  electione  iniustum  tacere  reddit  aln 
quem  injnsturo  non  autem  facere  preter  inten- 
tionem  et  per  accidens  sed  ignorantiam  Con* 
clusio  Divi  Thoms  in  secunda  quest.  59» 
Articulo  secnndo.  Et  cum  Judicium  ait  ag- 
gregatum  ex  actu  voluntatis  inclinaotis  ad 
recte  Judicandum  pnidentie  autem  seu  Fationit 
determinantis.  Thomas  in  Sa  Sdce  quflBsL  6. 
in  couclasione  articuli  primi.  The  fatalitie  of 
errour  quhilk  is  incident  to  ye  best  and  is  ana 


naturall  eclips  of  reasone  occasioned  by  ye  in- 
dispo»tioun  of  organes  ouia  aliqui  habent  iIp 
tionem  depravatam  ex  mala  habitudine  nakura 
Thomas  2f  8doe  queest.  ^4.  qualefeis  not  releraDi- 
lie  wilfull  perversues  and  partialitie  of  ye  will 
Becaus  in  law  and  be  ye  universal  practiqua 
of  all  natkmes  and  tymes  the  error  of  judges  ia 
not  a  cry  me  bot  sordit  and  partiall  depravatkron 
is  only  pnneischalde  Lege  12  TabuWum  xe- 
poirtit  by  Aulua  Gellius  liiiro  secundo  noctiinn. 
Cap.  ].  Lege  Julia  repetundarum  ff.  et  Cod. 
ad  Legem  Juliam  de  repetandis.  Le^e  Con* 
stantini  Cod.  de  piena  J  udioB  qui  male  jndicabit 
Novella  Justioiani  et  Litigatores  in  exordio 
Litis  Indicium  §  Si  quis  autem  ex  Litigato- 
ribus,  et  alia  Novella  ejusdem,  ut  judices  aua 
quoque  suffragio  dant  $  '*  tii  (j^uis  autem  gqok 
stitutione  Valentis  et  Valentiniani  Lege  Tni*^ 
versis  Cod.  ubi  cansoifiscalesagauturcousti- 
tutioue  Gratiani,  Valentiniani  et  Theodoni 
Lege  Judicis  Co«1.  de  dignitatibus.  In  all 
quhilks  lawis  corrujUM  depravatio  deprtd^tm 
J'urcu  ichelcra  and  iu  the  cannon  bw  simonim 
passim  ar  ye  crymes  duiy  puneisched  in  judges, 
and  abjured  be*  thame  \\  ith  solempne  concep- 
tioun  of  oilhes  at  yair  lulmissioun.  NovelU  8L 
'*  ut  Judices  sinequoquesuH'racfio"  Cap.  17.ft 
Novella  9.  Jusjuruiithnn  quod  prcstatur  & 
his  qui  iu  Adiiiitiistr.nioiic  sint,  Demostiuea 
contra  Dcniocritoin  de  Junmient'  Judicuniy 
the  contravening  of  quhilk  aitlics  inakis  yania 
lyabte  and  not  a  involunter  ina/Tectat  error 
quhilk  baith  in  law  dlvinille  and  philo'fUiia 
is  excusable,  and  without  a  gros^  absurdititt 
cannot  found  ane  dittay  Arist.  Libro  quinto 
ethicorum,  Cap.  8  *'  Divut;  Thomas,  Amesiiia 
et  omncs  casuists  de  coiiscicncia  crrante  quia 
judex  tunc  litem  suum  facere  iutclligitur  cuna 
dolo  malo  in  fraudem  k^is  senientiam  ducH 
Et  dolo  malo  videtur  hoc  facere.  Non  cdib 
sententia  iniusta  est  sv;J  ki  euJtus  arguatur 


I  IT} 


UjioH/t  Prteu  of  Error. 


A.  D.  1$81. 


[IIS 


eiu*  rel  gnitia  vcl  InimickrcE  vel  sordes*"  Leg*. 
15.  IT.  de  JuUieils  *'  Et  pejeriU  tHnttim  cnit 
•cien«  fiiUil  ^*  Lege  26  ff.  de  Jureiurandci,"  Kt 
formula  Jurifljuraadl  otini  erat.  8i  sciens  fiiUo 
<lie»{)iter  me  boni»  ejimt.  Armochiiti!  Consilio 
891.  **•  Et  Jurtices  debent  omxinie  p^mnrc 
eonsctentiain  meiilift  »up/*  Cicero  pro  Mibne 
ttjiassim:  et  conscienlie  Hiam  erromtn  di- 
€4iilur  sequi  quia  ohli^nt ;  otiities  causuiste  de 
conscientm  errante  adfu  tI  voluntas  disfordai is 
a  cofiscicntia  eUurit  errante  nmfa  sit  et  iniiiftA. 
duia  quirqtiid  est  contra  c(»n»cnentiain  et  rum 
«r  fide  peccatum  est  ad  lloiitano«  CMp.  14. 
Thomas  3  quest,  19  articalo  5.  Be  the  whilks 
alleg^ations  it  is  constant  that  itrnomncc  and 
error  in  judges  is  nocht  ane  cTyrne  Kt  Im- 
perilia  et  itfiprudentia  f»er  quani  judicen  litem 
iuam^aduntnonest  inaleBciuoi  In^titutionlhus 
De  obli^iionibiis  quag  ex  qua&i  delicto  nas- 
eumur,  ^.  de  oblig^atiDnibiiR  H  actionibos.  l^ege 
6.  ^  si  Judex.  Et  leg^e  6nali  de  variis  et 
•Xtrmordinanifl  judiciis  and  thatformall  iniquitie 
Aod  partialitie  cannocht  be  aubsumet  vpone 
aentcnces  maieriallie  erronius.  And  speciallie 
aganist  the  aasysors  quba  or  nocht  judges 
profiteiites  MfitMin  ct  qui  idco  tenentur  as- 
•uoiendo  officium  ex  quasi  delicto.  Pbarina 
foeat.  J02.  Num.  $89*  Bot  i>edaneous  and 
HfitneiBuiif  Judges  require!  to  serre  the  king 
iccoinling-  to  thair  conscience  '^  non  ha- 
bentes  Jurisdiction  em  sed  cognitionem  tantum 
camque  facti  taiitum  cuius  iguorantia  non  €St 
bta  culpa  nee  temeritaa  nee  quasi  delictum  et 
interpretatio  prudentissiina  etiam  tfallit'*if.  De 
Juris  et  lacti  tgnorantia  Hot  speciallie  in  Ibis 
ciice  the  alledjTct  ioiquitie  of  the  seatence 
fllMflttllit  eaiinociit  qualifle  u  ilfuU  error  agnni^ 
ttfi  raitilroeii  now  panne  11  it  bein|r  all  hottest 

Sentilmen  aclcno\^lpdi^it  be  rne  lord  aduocat 
inuelf  quha  hcs  gevin  pruife  of  yatr  loyaltie 
ia  y«  lait  disordourev  of  ye  count ne  And  bes 
Ithes^reifaDd  Tiber  com  mission eris  for 
J  tharoe  And  cannocht  be  presumet 
"  iodangcrit  tharr  honor  and  est  ait  be  a 
wilful!  acqaitliuop  of  ane  poore  inconsiderable 
man    in   quhouie  ihay  had  no  interest   and 

2abome  for  the  maist  |it*  thay  had  ne?ir  sene 
Q  respect  v^of  s^ing  **  in  dubio  dolus  non  pre- 
sumitur  scd  ex  itidictis  perBpicuis  probari  coo- 
venit^'Ub.  6.  Cod.  de  dolo  malo  cheitlit!  aganist 
Judges,  'Phari.  que«t.  89  Num.  H,  Et  omnes 
docUircs  in  Lege  3.  Codices  de  officio  Civthuin 
Jodie uni  tn  verba  non  artritramur.  And  in 
the  present  caice  all  presumptiones  exclu^ 
«!*•  of  dole  ar  ooncumng  to  the  qua- 
Utic  of  ye  pannell  baiting  bene  hitherto 
hotieat  and  uuMU^pert  g^ntiJmcn  The  qq^htie 
of  the  imirtie  acquit  quha  could  nayer  pnie- 
tize  nor  dc^enre  fauor  The  number  and  pod- 
aonancie  of  the  haill  pannal  in  ymv  acquit- 
ting a  man  in  quhouie  tuay  had  no  interat  and 
j*loir  can  nocht  be  nresumit  tn  have  conspy  red 
wHIiout  oity  cause  m  wronging  y^r  coiiMn«uoe« 
^tliev  hail  fyM  t         '  vine  moir 

II  rnc  of  sliucht  :  quhilk 

'the  taw  and  in  allMiM>ii..tLnii  i*  uue  maiirt 
prlgtiiuit  prcanjiiutiottn  **  quw  ccnAuiv  causa 


^essnt  delicti  pm umptio ;  et  dolus  non  pr 
irnintritr  vbi  non  adest  Yucrnm.'^  Crtivettt 
Concilio  175  et  Concilio  319,  Baldiis  Coneili 
25,  volumine  secnmlo.  *"  Multo  ininus  fh 
damnum  sentireinr**  Pl^an.  quest.  Hi.  mi 
44,  H  is  y'ftnir  conehidit  '*  qund  fran«  p<ite 
esaefine  pena  sed  penn  non  sine  fraude  ne 
of>c*!tBc  debet  iis  qnonim  seut^ntla  fuerit  solut 
et  resrift«^  nisi  Cfmvinei  potueriut  vel  iniqn^ 
animo  jndic«<sse  vel  aliqimjtrmtia  et  rupiditaU 
dcpravari."  Decretal, Cju J sn  ^>  quest,  6»  canon 
3  k  **  vbi  glos^a  *,{  couvinci  ar^umentatur  quo 
contra  judirem  malum  non  prestimiturquan 
vh  sententia  iuiqua  H  rescissa  n\i  Wm  con- 
vineatnr  et  propterea  qui  dirii  judicem  dotd 
aliqiiid  egisse  probare  debet,**  Phari.  quest* 
Un.  num.  3«1.  vbi  ex  vertio  evident 
I^gfe  siifilus,  ff,  de  juiliciis  cf»lti^tt  quod  ad 
judiciH  dolum  prohandum  non  ftuA^icinni  pre 
sumption^*^  nisi  sint  evidente*  «•«  concUidente 
et  non  presumi  ev  tacti  qfiJilitjite  nisi  sit  1 

Tt   nulla  paUiati<me   exeusavi po&iit." 

Num.  35.  **  Kt  judex  errando  eiinm  in  jup 
non  in  dolo  sed  lata  ctilpa  esne  diritur  le^** 
ff.  de  verborum  signitir^atiooc.  Phar.  que 
111.  num.  473.  '*  Vhi  astrurt  sententtituti 
suura  innumerifi  testimoniis  dnctonim  ussoren-' 
tium  quod  licet  ex  jiidicts  ignnmiitia  arguattif 
lata  culpa  IS  on  taroen  arguiiur  iloias  «*t  quo  " 
nee  etiam  dc^los  presumntus  itidiiciuir  niulttl 
minus  punitur  quia  in  cnminalibus  lata  culp 
non  eq^iipai-Htur  dolo.  Phar.  quest.  R4.  §  I 
nali.  Num.  21.  Phar.  quest.  SO.  Num.  Ifl 
Et  omnes  doctores  et  de  jure  el  tyinsuetndini 
judicis  non  sic  iudicantur  desententiis  per  im- 
|>eritiam  legis  sed  de  dolo  et  l>arratrm.  Bal« 
du8»  in  lege  observari  §  nrofiacisci  ff.de  oBioil 
pro  consul i>  -i  i-.r^tr.  Ilyeronimu*;  Jachimu 
Coucilio  i\  u  vbicitat  Batdum   Ber 

lasium  et  or         :  stores  in  materia  si  iudicatiil 
tenentesjudicemnonteneri  de  imperitiaet  control 
judicem  siju«Jicandum  non  sufticete  presumj*- 
Clones  sed  probationes  sole  clatiores  precipue  vb 
cessatcommoducn  etftilitas.  duo  ca'?u  senterttii 
iniqim  non  dioihir  doliMui:    ibidem  num. 
Quia  in  qualibct  materia    considerari    ileb 
potius  causa  facti   quam    factum.      And  llti 
act  of  parliament  1475  puneisches  only  fals  i 
sy^rs  as  the  nibrik  beiris     And  {{rtioranee  iti~ 
law  can  never  impoirt  falsett  "  ipiiii  tnlsum 
non  potest  esse  sine  dolo."     fr.de  dolo  malo. 
And  the  act  of  parliament  cmly  puneisehcs  wjU 
full  acquitteris    be  favore  or   paiii^il   meanest 
and  temeraritie  in  the  ad  of  parliamont  i^  takei 
copnlatiuelie  with   wiltullie  as  the  dif;iunctiv#lj 
*  or^  it  ever  interprejt  quhair  yair  sould  eiisevf  | 
vtherwnyis    ane    inhumane     ahsurdHie    aujj 
temeraritie  is  only  puneischablo  quaiulo 
veuit  H  dolo  malo.     Phar.   quest.   0<J,  nun 
63.      Alioqui  temeritas  faeilitatis  venmrn  eoi 
tuiet  et  peiia  nou  potest  irrogari     C  ad  «enatua 
consultum  m  Tnrpilianum  et  ori 
siMuper  c^nsideranda  est  si  enu  Ao% 

lion  f«t  delictum.      And   (t 
mniestie  «|r*nitO  the   act 
Intive  i|»tmeisc^c0    only    p<iiu 
d^eravit  ct  dig«rai(M»  {ivrcouvK 


33  CHARLES  II.      ProceedingB  MgmnH  Alex.  BUiir  end  others,      [190 

foundit  quiiairin  it  is  said  that  natie  presume 
or  tak  v|>oiie  hand  to  recept  or  intercoramoun 
&c.  For  heir  *  or'  does  not  seperat  wordifl  of 
dyu's  senn*  in  sua  iar  as  to  presume  and  totalM 
▼pone  haud  ar  all  aue  And  in  the  strict  accep- 
tatioun  of  ye  wordis  ancht  to  be  interpreit  da 
dolo  prcmediuito  ct  apjiensato  non  dedolo  flim- 
plici.  As  gif  ony  man  knawingfthal  inter- 
commonin;^  with  rcb<>llis  war  a  cryme  Bochl- 
with;»taudingy  'ofhe  wald  attempt  to  committhe 
said  crymc  thinkiu*^  hy  i»ome  vtlier  e?asiouii  to 
eveit  thepuneischment  of  ye  law  and  to  schaw 
clcirlie  that  y^e  said  word  (temeraritie^  in  the  act 
of  pai'lianicutmost  be  that  same  with  witfali 
error  and  partialilie  The  act  of  parliament  ia 
allcad((ing  the  caus  of  the  |freat  assyse  vi|pe» 
only  tills  that  gif  ony  sail  haif  acquit  he  wiii'aU 
error  or  partialitie  and  speikis  nathing  of  teme* 
raritie  Uuhilk  wordis  of  the  act  being  strenth« 
eiied  be  therubrickof  this  act  and  the  corooaomft 
law  auchtto  stronthen  and  interpreit  any  sub- 
sequent wordis  of  the  act  ordane<l  be  thesainjia 
in  respect  of  thaise  wordis  wilfuUie  or  partiauie 
meines  conteined  in  the  first  end  of  the  act. 
Tertio  it  is  allegit  lie  Mr.  Thomas  Nicolioee 
that  the  pannell  cannocht  go  to  the  kaew- 
ledge  of  ane  assyse  vpone  the  dittay  m 
mpect  the  samyn  is  nawayas  relefant  as 
it  is  declairet  he  my  lord  aduocat  '*  in  in- 
gressu  Litis*'  viz.  that  his  lo'insistis  only  vpone 
this  dittay  as  it  Ivbellis  the  |)annellis  as  temere* 
rioiislie  or  wilfullie  to  haif  danget  James  Gor- 
doun  the  pei-soun  first  pannellit  frome  wittingp 
intcrconiinoning  Because  the  dittay  does  nocht 
rdevantlie  subsume  fra  the  act  of  {t'liament  *  de 
*■  pen  a  tcmene  jurantium  super  assisam'  in  sua 
far  as  the  said  act  boiris  That  in  ye  accusatioiiB 
of  ane  trespassore  nottour  and  niaiiilest  knaip* 
lcj;re  beinpf  had  of  ye  trespassour  Than  gif  it  salt 
happin  the  assyse  to  clenge  the  tresjiassore  and 
gif  it  sail  be  Terified  evidenced  to  ye  assyse.  of 
error  that  ye  p^tie  acquit  was  ane  trespaiMe 
that  than  ye  acquilteris  of  him  sail  incur  1^ 
pane  of  *  tciueri  jurantium  super  assisam'  Bel 
sa  it  is  that  ye  tUttay  subsumeing  that  ye  pae* 
nehs  assoilzf  ing  James  Gordoun  fronie  witting 
iutercommoning  dues  nocht  subsume  that  thay 
assoilziet  ane  trespasser  and  cheiflie  such  aee. 
trcspassor  as  qr^by  nieanet  be  ye  act  of  p'l»» 
ment  And  y'lbir  it  is  nocht  relevantlie  su^ 
Kumet  fra  ye  act  of  pMiameiit  de  ptna  temer^ 
jurantium  That  James  Gordouu  being  ane 
uaiked  wiitintr  inlercomnioner  is  no  trce» 
passor  It  is  cleir  out  of  ye  dftinitiuun  of  wit- 
ting interconimonin|i;;  allegit  be  my  lord  ad* 
uouat  in  ye  dittay  viz.  that  allenarlie  kna«r« 
iiig  that  the  p^icis  with  q'm  he  intercommon- 
(id  warrebellis  lie  intercom  inoned  with  tbame 
iior  to  niak  ony  intercomiiioning  a  eryme 
and  such  a  cry  me  as  be  the  lawis  of  the  cuntrey. 
ar  puneischable  be  death  Nocht  only  moaft 
ihay  be  prcsupponet  that  ve  intercommooer 
knew  the  rebeJiis  to  be  rebellis  hot  also  that 
knawiiig  tlianie  to  be  rebellis  befoir  the  aft  of ' 
intercom moning  cif  the  tyme  of  ye  same  he 
had  a  frie  will  and  intentioun  to  iniercomniona 
with  thame  For  of  the  law  of  all 


119] 

y'foir  in  respect  of  the  cubrik  beiringonly  falset 
and  that  in  law  ndirica  dat  interpretationem . 
statuto.  Mascardus  de  generaii  interpre- 
tatioue  stalutornm  et  ostendit  mentem  statueii- 
tiom  dicia  conclusione.  And  that  statutes  ar 
to  be  interpreit  nc»n  secundam  rorticeui  ver- 
borum  l>ot  accoirding  toUie  rubrick  and  vni- 
uersall  strayne  of  law  and  reasone  precipuc 
quando  se([ueretur  absurd  urn.  Mascardus  ibidem 
<Sadem  questione  temeL*antie.  Thuir  can  never 
be  interpreit  ignomnce  qolitlk  in  law  and  sen's 
can  nevir  iiupoirt  ane  cryme  quod  consistit 
ex  voluntate  et  ad'cctu  et  dolo  malo.  As  is 
constant  be  all  the  cnmiiud  edittisofye  law 
in  the  27  and  QQ  buik  of  the  Dip^csts  q'in  the 
hiiili  matter  of  crymes  is  contcined  and  almost 
in  everie  title  and  everie  paragraphe  dolus 
mains  data  opei-a  cnimus  affcctus  |)ro|}o&itum 
volunlas  i'raus  ar  re qiiyret  and  repel  tit, 

Itistiket  be  Mr.  Thomas  Niculsonc  to  the 
last  alleil^eance  proponct  be  Mr.  John  Nisl>ett 
andchietiiciu  furtiiicatioun  of  that  poynt  y'of 
ancnt  the  interprctiitioun  of  the  particle  (or) 
to  be  vndei-stuid  as  ^i\'  it  war  the  particle  (and) 
and  that  temeraritie  in  the  act  of 'parliament  is 
to  be  conioynet  with  wilfull  error  and  partialitie 
It  is  allcii^et  that  nuther  in  law  nor  cvin  in  the 
actis  of  parliament  thamesc^ltEs  is  the  saniyn 
ane  impropriat  signilicatioun  stran^^e  or  nucht 
fiudabic  nut  in  l;iw  hot  in.  ye  contrair  for  es- 
chewing of  civill  danf^eris  in  matters  of  guidis 
or  heritage  'i'he  particle  (aut)  or  (vel)  is  in- 
terpreit and  tane  for  the  particle  (and)  et  As 
chicflic  in  Ltge  57.  s.  2.  ad  TrebL'lli.'mum  se- 
natus-coiisultiim  |Kn*peto  de  te  vxor  charissima 
turn  inorieris  hereditateni  meam  rcstituas 
filiis  nieis  vel  vni  rorum  vel  neputibus  meis 
vel  cui  volucris  rcspondi  (inquit  jurisconsultus) 
inter  iilios  siilistitutione  commissa  factum 
videri.  And  yit  be  ye  woirds  y'of  to  witt  *  vel* 
thair  was  powm"  gevin  to  l  eve  the  heritage  to 
aue  of  ihnme  us  also  Lege  CAh  ff.  de  verb^rum 
significHlione  in  e\)»res  tornies  sepe  ita  com- 
juiratuni  est  vt  coniiincta  pro  disiunctis  rccipi- 
nniur  et  e  contra  disiuncta  pro  coniunctus  nam 
cu^n  dif'itur  apu<l  vcteies  ai;-natorum  <^ntiliiim- 
(juc  pro  separatione  accipi  ac  cum  dicitur 
super  {K:cunia  tnlela  ve  sua.  Tutor  sepa- 
rutim  sine  ps-cunia  davi  nnn  potest,  iind  also 
liege  't.  Cod  ice  de  vcrbdruin  el  rerum  sig- 
iiiiioatione  ilii  in«liiis  itaque  nobis  visum  est 
inquit  imperator  omni  huuismodi  vorbo  citato 
coniuiK'tioncin  aut  pro  et  accL'pl  vt  videutur 
copujatiuo  inodo  esse  pn  Inla  qucmadmo- 
dum  in  iiiterdicto  quod  vi  sut  rlani  coniiinctio 
(aut)  fM-o  (et)  apjKTtissiiii;^  est  pouita.  In  q*ik 
cait'ts  for  civile  res}H?ctis  ll.-c  inipmpriatioun  or 
the  w  ord  (aut)  is  in  vse  Ai;(l  \  airfoir  far  rather 
aucht  ye  samyn  to  haif  place  in  this  caice 
qr'  wiUiout  tlle!^anlyn  the  act  of  parliament  in 
the  wordis  of  ten  sera  ritie  can  nocht  reosaue  ane 
iiiterprptatior.n  accctiniing  to  law  and  cqnitie 
And  yat  ihe  wt>rd  (^r)  cvin  in  sindrie  aciisof 
p'liamcnt  dois  not  so  sep<rat  the  words  bctuix 
quhilk  it  is  put  as  that  thay  snuld  have  (htitrent 
sens'  in  substance  Jt  is  cleir  oat  of  the  act  of 
^'i;a.n<mft  ^^^  qf»  ^^^^^  ^q  g^st  dittay  waa 


ISl]  uptm  «  Pr&crn  of  Eirer* 

coDtrollablie    observct  and    inaiitcnet  l»e    aU 
'i*  wry  ting  ^potie  the  caicc  rif  comuiis* 


A.D.  \6%\, 


[ISt 


of  crytnes  autl  luvw  tiie  same  are  pu 
BewcJKwble '  It  k  cletr  iliat  in  cnmes  ilie  pu- 
B«]«cbliient  qr^of  is  corporali  quhld<ler  capitall 
or  not  l*liat  i>c»/t^  that  is  ,the  frie  will  and 
itit«uttoart  of  ye  eomroittcr  ia  r«qi»iret  As  tfi 
the  grittesi  of  all  crymes  in  Crimiiie  fese 
iiiaie«Uti$  per  totum    tituUim   tf.  ud  Lep^fTn 

»  JuJiam  Maiestaiiit  ihair  is  ever  mtuiiuim 
maid  of  Dole     Bot  chicflie  Lt^re  4 .  foc/mi  tUuh 

'  BDeut  supplting  of  reirellis  q1k  caice  in  the 
same  ivith  oures  And  rnair  iVi  ciusve  opera 
dolo  main  Uostes  popiili  Hnnmai  couicatu  armis 
tdis  eqiiis  pccunia  aliave  qua  re  adjuti  erunt 
ct  nisi  iniervenerti  doJus  in  cofiinu»&icne  cri- 
mrnis  reos  onlinarla  pena  non  est  punicnduij 
Julius C'larus  Practica Cltoitiiilifl  f .  tinali  quest. 
8-1  nutn.  1.  Antonius  Gonilsius  variaruin  resO' 
lutionuQi  Totno.  3,  De  lioraicidio  nuui.  13. 
€*rimen  eiiim  commimutu  «iae  delo  quanq^m 
itl  sit  materialiter  quod  revefa  es§et  erimeu  si 
ad  fuerit  dolus  in  quo  consistit  forma  et  essentia 
criiiunia  cosiissi  qua  enminis  Me  tamen  doli 
CDmmissum  coaiuittieiiti  uti'quam  imputatur 
dnUm  attteni  adeiie  dicitur  si  voluntas  eonimit- 
leodi  cniiieti  vel  d^ietiim  reus  Jiabuerit,  Lege 
^.Cod.  dcHicani$  ibi  Ri  quis  sine  animo  occi- 

^IpMli  occiderit  eum  nun  puniri.  et  Lege  14.  tV. 

^^nr/i      11)1   Divus  Hadrianus    in    hec  verba 

HBRripsit  in  male  ficiis  voluntas  spectatur  oen 
txitiis,  Tbe  reaaoiib  qr^of  is  ge\iii  lie  Fhart. 
que«t.  87  inspeciione  prima  num.  5,  Quia 
sine  dolo  et  tinimo  di  liuqivenrli  delictum  tion 
Qommillittir  et^  ne€  pnniturf  non  commi^lUur 
iiiquit  quia  animus  et  proposirum  distin^uunt 
mabilcia  et  in  dtJictis  et  malefk'iis  vttluntav 
•pectatur  et  non  exilu"i.  And  uTuiidis  bimselff 
vpone  expn^'s  JrnTis*as  Lesfe  1.  §  3.  If.  nd  Legem 
€ioroiiliAm  de  Hicariis  Ibi  cum  qui  liominf^m 
si  non  oecitlcndi  animo  a<Uiiistt  absoh  i 
k*et  \f^^^  ^I3a,  in  priudj»io  f^^  furtis. 
ibi  qui  iniurie  causa  jaooaiii  elftcgit  qnanivii^ 
iode  per  alios  res  amoti  gust  oon  tcnetur  furti 
nam  maleficia  totuntas  et  prepositum  delin- 
quentis  distingutinl;  et  capile  ebm  voluntate  de 
Miitentia  exoommuniiUktioum  cum  vohmiate  et 
pfopof^ito  mrilolicta  distinguuntnr  excommuni- 
cationi.4  senlentiiKm  non  inciirrit  qui  e\commu< 
nieuto  in  his  qui  ad  a1i«ohtti(mem  vel  nhas  ad 
ammse  »«dnrrni  pertinent  in  loctitioue  pai  ticipai 
Licet  etiam  alia  %'ert>a  inridentc!r  intrrponat. 
ita  sentii*  3iiutM:hiu>«  de  Arbrtrariis  Judicium 
t'iiHui^ii.  num.  t»  l>um  ait  veram  ei  divinam 
«Kie  omnium  sentontiam  iletirtum  *ine  dob*  non 
puniri  And  th.it  mvca  du  rrquixitione  duli  in 
«fimmibu«i  is  so  inlair^^cd  be  all  tlie  doctors 
that  Ibay  IkjUI  it  mm quhtifr  it  is  protiitit  l»e 
ooy  statute  simplV  'I'bat  \e  eommitter  of  the 
cry  me  saH  bc>  puneisrhc-t  m.*  death.  Etsta- 
liunm  intf^lbi^ecidum  si  delictum  sit  dulo  com^ 
Iftissum  qnii*  sitatuia  reeipiunt  intiTpretaiionem 
passiram  a  Jure  communiuequis  damnum  in* 
liebitc  patiniur.  glosea  10,  l^ge.  2  Cod.  de 
Nox.  act.  Jas.  Lib.  in  actinmbua  num.  ^6,  if. 
l>e  Litem  jurantia   Ibi  tent,.  n!e  cou- 

lrarimi»      Idem   Jas,  in  ru^  tie  lege 


nam.  19,  el  iO.  Ant.  Gom.  Varioniiii  reao- 
lutionum  Tom.  3,  Cap.  3,  onm.  15.  Paul 
de  Cas,  in  rubric.  Tit.  ff,  dc  lege  num.  J9- 
Alexander  ConsiJio  140  num.  4,  toIh.  £»  Et 
per  tolum  consilium  vbi  congnJuit  eum  qui 
[josuit  oHendiculum  ad  feiie&tram  c&iiaa  ca* 
|)feiMli  fbrea  noctu  aecedentes  non  teneri  de 
ocdso  fd  contigerit  ahquem  vol  en  tern  per  so 
vestram  ingredi  mediante  oflVadicitlo  precipi* 
lem  Irtpisum  in  lerram  et  mortuume&«»e  uoqiioA 
qui  oliendiculuui  posutt  anuiium  occidendj  \ 
habuit.  Lt  coui>jUo  38,  ti>I  lo  uht  con 
Itiit  locum  case  Jure  repr^  >  in   suo 

e^^iiiuihuH  uoo  olmtante   -  'taute  ad 

sueoes!»iouem  cognatos  proximtores  in  grado 
quia  per  hoc  non  excluditur  Jus  rfpreteDta-> 
liontK.  Tira.  de  Jure  primogenilorum  quear, 
40,  num.  2^,  el  B9.  Pbarioa.  de  dehctta 
carnis,  quest.  345,  num.  QJl,  et  num.  159. 
Alias  SI  statuta  interpretarentt»r  sequere- 
tur  maximum  absurdum  :  Nimirum  quod  esor 
homicidio  casuah  quod  sine  aliqiia  cul]ta  con-^ 
tigerit  quis  decapitaie  deberet  quod  ecset  vaidd 
Injquum.  Idem  Paiilus  m  Lib.  3,  €3od.  d^ 
£pi.s.  Audientia  Jure  secundum  iua  com- 
mune statuta  judrx  interpretare  potest  quainq'ia 
ea  serfarejitiuverit  per  eius  emm  Jutamenluat 
uon  loUitur  arbitrium  quod  ei  datur  a  Jure  muk 
muni  dictus.  Pauhta  in  lib.  3.  Cod.  exqui 
Caus.  in  lamia  irrogatur  vbi  ait  se  istani  causain 
habtii^e  de  tiioto  et  i|uendam  evasi^ise  a  pcB» 
mortis  imo  verba  skituta  smit  potius  impropri* 
and  in  civilibus  et  etiam  aUquando  pro  super* 
liuis  Liabenda  quam  lerant  sensum  jure  com* 
muui  contrarium  et  pafiatiir  quis  damnum  in* 
debite,  Joannes  Tugona  singular,  suo  16  mini* 
7,  Hipp,  de  Mar.  singulnr.  suo  640  num.  5^ 
Ergo  niulto  inagiii  in  criminalibu^  ne  quia 
damnum  vite  indcbitum  eiusquc  dispeuditmi 
pat  ia  tur. 

Turn  autem  maxime  stati^ta  crimifiibtifl 
|jcnam  capitalem  imju^n'^n'm  viinnJiciter  sine 
vita    do!i    meutione    i  »    a  Jure 

comrautii  teeiperedt^i  ,         i»"llii:antur 

mode  crimen  dolo  sit  commissum,  quando  sta* 
tuta  hi^  verbis  vtnn tur,  ne  quis  audeat  vel  pre-* 
liiunat,  verba  autem  audei^  vel  presumere  no* 
turn  animi  et  voluntatis  presupponunt,  PhaH. 
in  quest^e  87«  num.  33.  et  audere  vel  pr«- 
»uriiere  ex  alicno  ^ecunda  t>arte  pru^sump* 
tionum  Num.  '^  nihil  aliud  stgniHeant 
quam  prt*«»um|»4ive  et  suprrhe  aliquid  agere  att* 
ihoritate  pi  .:<  niptn  sujKTtom  amho- 

ritatem  ;    *  clium  et  supercilium  ia 

animo  et  lo.iiinuit   iiiibtnt.      Ita  AlexV  Coa^ 
<filio  l!23.  num.  9.  vol.  4.  ifor  ony  stafule  er  ncl 
^9  fxrmpt*  e,rQtta     The  act   nf  nulJuiTaeiit   ini 
anno    1592    aganiH    inter*  .    bt'iring*^ 

tliaiseword^  That  naue  p  i  iik'Tpone-' 

hand  ayer   most   be    u'idenitand  to  speik  of'^ 
crymej*    committed    an  mo  tt  pntpoUlo  tom*  { 
mttteutii  or  ell  is  the  said  is  aetis  sal  be  eoa« 
trair  fo    the  commoun   taw  that  puneischet 
na  ci-ymes  capilallie  bot  crymes  eommiltit  off  ^ 
wilK  and  tniiutioun     And  also  ye  saidis  actiy 
sail   be  conlrair  to   thameselms    and    imply 
aue  oontradiottcmii  m  tlie  commitler  of  the 


Hyj    "       5$CnARLlSn.     Pt^etedhgiagdhntAteM.SUiraniotheri,      [Ifl 


€ryme  ^f  tbfty  tta\  he  vnAlnUud  of  theaee 
^uha  coitiDiittis  aay  allegit  t^r^me  "  ffiDe 
proposito  et  animo  dttincjueuJl'*  quimo  zit  thay 
a^ieik  only  of  ibtas«  quba  sail  presume  or  tak 
rpone  h»nd  to  commit  the  crynie  That  is  quha 
conl#mpniikijf  the  ^upreame  amijoritic  in  vair 
myntJis  Qttempllito  doein  the  contrair  or  ye 
■ame  and  ta  (wrtietrat  ye  «ii^rae  forbidden 
quhilkis  lua  quatiteis  Ttz,  to  commit  any  alledgit 
ei'yme  **  sine  ajiinji>  commiiiendi,'*  and  to 
cominit  the  same  **  animo  presiimptuoso  et 
legeiii  spernente**  ar  oocht  compaiiWe  "'  eotlem 
tempore  el  actu."  And  nocht  only  of  the  law 
is  this  intentioun  callit  doin*  he  the  doctors 
naikedlie  requiret  to  intervene  in  ye  comuiis' 
fioim  of  ony  crime  l»ot  the  same  is  so  stricllie 
ezmctii  and  link  it  to  thai  gif  be  s<ime  gross 
i>eg:gUgt^nce  el  lata  com  mitten  tis  culpa  quod 
crimen  ridetur  committJitur,  |>cDa  iameu  oriii- 
Daria  com  mittens  puniri  no n  potest  quia  puni* 
endiis  venirct  si  ex  propositoatlmittniiir  crimen 
^uanqnam  enioi  in  ci%ilihu&  bita  culpa  doio 
eqtujpareiur  non  tamea  in  criminal  ihii^.  Lib, 
T*  n.  de  sicarits.  Ant.  Gom.  dicto  capilulo  3, 
Num.  15  versii ;  iroo  qucMl  ma^iu  est  quamrili 
hotnicidiitm  sit  comoiissum  lata  culpa,  ifan. 
titulo  de  homicidio  quest.  1^5  §  1.  Num.  92  et 
45  Lata  enim  culpa  non  est  dolus  verus 
Bed  presumptus.  Julius  Clarus  y  dc  homicidio 
Nutia.4.  Minochius  de  arbitrariis  judiciis  eas. 
352  Num.  12-  li'arin.  dicta  questione  125, 
Num.  45*  In  the  ^\hi1kii  places  the  doctore 
a.6irmes  Crime^i  sine  dole  rommissiini  non 
ordinaria  sed  iniliore  pcna  pleclendum  etiamsi 
mrlstt  lata  culpa,  dolus  enint  in  tlubio  in  de- 
lictis  non  prelum itur  scd  semper  vrget  pro 
reo  genemlis  presumplio^  ft  ea  actiia  in- 
lerpretatio  fiat  ne  quis  incidat  in  delictum 
Math.  Matbei  sing,  suo  110,  Ja9,  in  lib.  hoc 
Jure  Col.  peoa  vltima  versa  S.  fallit  ff,  de 
»ctiaoibus  Bart  in  L.  7.  ff>  de  sicariis  et  in 
Lib.  ti  adultenuro  turn  ince^ta  §  iidem  impe- 
ritores,  ff.  de  adulteriis  tenet  abquando  in 
delictis  nollo  modo  puotri  lataiD  culpam  et 
difitiuguit  iuter  chmina  et  ddieta  quis  prtnei- 
paliler  in  altermn  committuntur  vt  bomicidium 
ua  quibu5  ait  Latam  culpam  eirtraordinaria 
puniri  poese  pena,  et  inter  delicta  que  per- 
•oiiam  aiicuius  principaliter  non  respiciimt  vt 
est  stuprura  incest  urn  et  Jn  nVo  cast)  ctmver* 
satio  cmn  bauito  ;  in  quibus  delictis  ait  BartoK 
L^tam  culpam  nulliitenns  puniri.  QucMiauteni 
de  delictis  capitaliter  punieudus  dictum  est  re- 
qoiri  voluntatein  et  propositiim  delinqucndi 
sauo  sensu  est  inCelligeiidura ;  lia  vt  voluntas 
•it  libera  et  nou  caacta  neque  vi  neque  itietu 
iufcto;  justo  nitnirum  qui  in  constautiiisrtnum 
nomtnem  fadere  pHest,  voluntas  enim  est 
mavr  oogente  ad  aliquid  non  irai- 

Un  uduui.hoc  est  non  faciendum 

vel  tacitndum  :  Cnp,  10.  Cas*  15*  qu€»t,  J  a 
Uccreti  2  parte  Pn>inde  si  quls  vi  co«mHus 
f^  ti  "' iiti  jiuitn  aJiiTuid  tecerit  vel  per- 

«ttr  riau  tuuto  hanetur  in  civihbut»  et 

in  cuiMitii«iiii>a« }  precipue  in  ils  criminalihus 
altaiyi  pcriNIOftm  principaliter  non  res- 
|pn>  ttOtt  crimine  ii«hbetur 


vt  in  civilibas  passim  baWri  est :  per  UHtoi 
titulum  fi\  De  eo  quod  metus  eau^,  ei  qu< 
vi  et  vi  armata;  »ed  precipue  in  L^ege  Cics 
tf.  de  publicis  vbi  cum  Cetsar  insutai 
Creten  locarcl  Legem  ila  dixerat :  tie  qui 
preter  reilemptorem  [tost  i*tiis  martia*^  cDtcm  e: 
insula  Crete  Ibdito  neve  ejcimito  ueve  avellito  j* 
cuiusdam  navis  ante  idus  martias  et»tif 
ouusta  ex  porti?  Crete  pfoferta  vento  relata  in] 
portum  eiTit,  dein  iteruui  post  iduj*  l^larcir-^ 
profecta  erat,  coniudebatur  ntini  contra  Le;^ 
factum  quod  post  idus  Martias  ex  uisuta  C 
cotes  exiisise  viderentnr:  Hesponsum  socuil^' 
dum  casum  propositum  viiieri  non  contm 
Legem  factum;  ideo  quia  relatus  erat  niiutx 
ternpt^tate,  et  sic  in  Lq^era  latam  commits 
coactus  involuntarie  autem  hoc*,  est  concts 
voluntate  commissa  non  punicntur.  Gl 
Gotbofred.  in  dictam  Legem.  Ergo  intil 
raagis  in  criminalibus  quoequis  vi  relju»to 
c^Hctus  ill  Legem  cominillit  vel  statutuns  non 
puuiunttir  quasi  contra  statutiim  facta :  sis 
statutum  prohiliens  rem  mobilem  alienari  sub 
pcna  in  forensem  Lacuna  solum  habet  in  alienn- 
dcme  vohintaria  non  necessaria,  Clarus 
tiuali  quest.  82.  staL  2.  Num.  4.  sic 
reccptatoribits  coaciiSf  recipientes  banitum  noii 
voluntarie  sed  coacte  quia  plures  sunt  banii " 
simul  et  eis  erpellere  non  potuissent  sine 
periculo  pena  aliqiia  non  punitinlur.  Ita 
Barard.  in  add.  ad  Clarum  quest.  90.  Num.  46. 
ibi  ait  tales  receplatores  non  teneri  bamlo« 
in  doiJio  relinqtiere  et  recedere,  Justus  autem 
niettts  ^  est  et  talis  qui  in  constantisskmom 
boniineift  eadere  pot^t :  Est  terror  armomm 
etiatn  absque  eu  quod  arm  a  habentcs  iis  wti 
fuerant.  Lege  3.  \  qui  armati  3.  ff.  de  vi  eft 
vi  armata.  Alexander  Consilio  Lib,  5  coa^ 
si  ho  156  Num.  3.  et  Lib.  3.  Consilio  $8* 
Num.  2.  etiam  absque  ulla  comminatione  vel 
percus^ioue  ^ufiicit  terror  armorum.  AleiC^ 
ander  diet.  Consiho  98.  Num.  3,  Kt 
quamvi^  qui  cutn  armis  accessit  amja  de|K»*^ 
suerit :  Glossa  in  diet,  §  qui  armati,  et  Alax  ^ 
ander  diet.  Consilio  Num.  5.  Sufficit  eiiim^ 
inquitdictus  Al^^ifander  Num.  4.  et  6.  ibidem,' 
solus  limor  violenlie  infereude  ut  sit  iusti 
raetus  modo  subsit  Justa  causa  propter  quacn 
futuram  violentie  impressionem  timere  de- 
bemus  licet  violentia  neque  fuerit  secuta  Imo 
tiequecomminata ;  non  enim  debet  quis  periculo 
extremo  sese  subjicere:  vnde  Barard  I 
supra  cilatci  receptatores  banitorum  eos 
fie  11  at  coactoa  qui  banitos  cunti  plQre« 
simul  receperuot  eos  expellere  non  valentf 
sine  periculo.  Item  de  Jure  deterii>iu»tum 
est,  qutMldicatur  metiLs  Justus,  hoc  est  viri  con* 
stantiasimi  quando  subest  metus  mortis  vel 
met  us  cruciatuB  corporis  Alexander  Lib.  £1, 
CO nsiliorum,  Consilio  99.  Num.  3.  L,  sed  el 
fii  3ff.  ad  Legem  aquiliam,  Ibi  et  si  metaEA 
quis  mortis  furem  occiderit.  L.  3  §  d«cimo  C 
quod  metm;  causa  L.  4.  Cod,4.odem  L.  13  d« 
trunsttctiouiljiis  *  tbi  set)  talem  metum  prubare 
oportet  qui  salutif  Hrel  perioulum  vel  corpus 
cruciatum  cgnhneat,  L.  7.  Cod«  de  lits  qut» 
^i  mctusuecau^  gesta  iaQt»  ibi  tovtruineiiium 


si 

id« 


iricuio 


■ 


upom  a  PtactMi  cf  EmiT^ 


i^.  IX.  \6%u 


[lia 


rnetu  nioHit  ¥«!  cructatu  corpom  eitortum. 
ilftrthdua  diet.  L.  3.  §  an  i  ,  tf.  de  vi  el 

vl  amiata.     A  nd  y'foiV  klx  s  din^  lo  llic 

lawis  and  ti^tittioaeis  oi  liaclo'rs  addiicet 
heirtoftiiir  nil  n^ifn^uig  wilb  e(]uitie  and  rea- 
aotie  110  ij!i  -  >«     And  thiiirfuir  uochH  ye 

wftling  II  Flinty  lyheUit  agnnis  Jamei 

'Gordoun  \\\v  Tust  |Kmncll  can  b«  eatiinatto  be 
ano  crytiN^  (Mini'iKrlmf>le  l»e  death  or  to  cuni 
vutler    ye  a^nipus   of   the  act  of   p*Iiamt*nt 

f^uist  mtercoininonem  itiflictiujj;'  vpunc  thame 
bo   pwnisrhment  of  deathe  cicepl  it  be  Iv- 
heWti  und    vtider^tuid  that  a6  be  wa*;  anc  vvit- 
liiig  iotercnmmoiier  so  he  was  aae^vilful  inter- 
eonimoner  Tbat  \k  qubanr  be  intercom moned  he 
I  hafle  atie  ire  wilt  and  lutenttonn  Fncuactit  in 
Iha  doi n i^  of  the  eaiiie    The  p»  iin rl lis  assyscria 
ia  a9(ioy[z4jing  the  said  James  Gdrdoun  from 
WttJiig  interoomiiioiiing  lies  naitayes  acquit 
■oe    tf«8{Hiiaouf«    agatnca    the    act    made 
'againes    intercommoutQg    and    thairfoir    are 
I  not    sdcbe  asHysouriii    a^ftiaes    quhorue   anc 
relevant  dittay  f  pone  the  act  of  parliament 
'*  dt:  pena  tetuere  litiganttiim  snper  assysam'* 
Icstt    be     rdevantUe    lyUelUt     for    acquitting 
Itlie   said    Janit-a     Gordonn     of    ^jttiugr    in- 
'  tercomnionin^     The  said   qualtfie  of  witting 
being  vndi^rstuid  aa  in  the  dittay  distinct  frutn 
the   qu.iliite  of   wilftill    intercomtnoninKT  "nd 
I  i^ittiout  the  samyne  vnless  my  lord  aduaca.t 
would  conjoyne  the  aaidis   tua    qnulitieii    lu 
ihcy  artobe  conjoynit  in  the  act  of  p'linment 
for  albeit  they  be  conceived  in  ihe  same  dis- 
junctive zit  ttey  ar  to  be  vuderaiuid  copulative 
oe  atalututn  feratsensiimjure  c^mmuni  con- 
^^tratiutii  et  fubi  ipsi.     In  quhilk  caice  gif  the 
'  act  of   parliaipent    i$ould   be    vnderstuid  co- 
pulative ns  of  c<{uilie  it  aucht  to  be  and  the 
dittay  confiuiue   thairto  carift    wiUing:Ue   and 
Vrilfi!"  -  '?      »  hf  Heini  thai  the  quulilie  of  in- 
ter< '  uiUuHit?  was  njiutiye^^  proven  to 

the  ^  .  -  -  .>  James  Gordo unes  depqcsitioun 
and  circunjsNii»ce.s  thairof  producit  to  thfc  said 
BMynB  But  on  the  coolratr  it  utiuli  \n'  schawin 
cleirbe,  tbat  out  of  the  aaid  u  and 

n^yV  waye«  out  of  the  g-emt  i  inptiua 

cariadire  of  the  refielbs  viz.  tbiit  being'  despar 
I  Atlie  diiHirdoarit  men  and  haiveing  schakiu  a(f 
the  feir  of  G<mI  and  bi^    ma'iies  lawis    and 
liaivein^    tntrrt^rysit  ane  desperat   cours'    of 
'  pf»\  1(1  doune  the  cuiintrie  be  publicl 

iiost  it  !£  rncr  to  Ixi  presnmit  againea 

thaiiii'  uijii  !ii  tuvo*re  of  tin*  l^idrrea  qubome 
they  acddentalliesurprvst  That  j^if  the  letcl^res 
doe  ni»l  haivt!  conff  r*""^  ■  '''■  ^'-^'ne  at  limir 
tticiliiijf  lK>t  preioe  i<  i  \  tberwayet 

thairinal;i  is 

'ty  attetiipl!;  .,     ^  ir 

l>fe    Ami  also  l>y  the  rel»elliM  thaircariudge  and 

'  Aair  ttm  nrt-idttntail  «urpryi>efi  of  Jmnes  Gor* 

doiii  '  » the  uayse  it  lall  be  veritietthat 

the  GordouD  foraoy  thing  that  waa 

m  Jo  the  at^jadrii  waa  trcwbe  fomt  and 

irllit  to  nay  mterooQimoniR^  he  had  with 

le  rrbeUix  and  tbat  Iw?  anejuxt  fcir  of  the 

ibunifiT  of  bm  lyfe  i|iibiik  trewbd  xntgbt  kaive 


bene  ane  laftit  dainffer  gif  he  had  p^reieeit  ajr'r 
to  refuis^  to  heir  thair  discourse  or  to  abvd» 
with  ibnme  dureing  tbair  pleaa^r  ©r  gif  *(he 
bad  preiccd  to  haite  gone  his  way  or  raisii  any 
hoy  and  cry  to  ad?  ertyse  neighbouris  (isfif  anjr 
was  astrewtie  thair  was  nane)  to  hare  appre- 
hendit  ihe  ri*bellis  In  respect  of  thv  quhilk 
alledgance  the  dittay  aa  it  is  declairit  la  na* 
waves  relevant. 

Jt  is  alied^t  be  Mr.  Jo*  Nisbett  aa  prolo- 
quiior  for  the  pannell  that  the  dittay  h  nawayi# 
relevant  couciuiding  penam  temere  jumnttum 
soper  asaiaom,  vpone  the  alternative  concep- 
tloun  of  the  act  and  assumptioun  y*upotiu 
unles  it  be  vndcrstuid  joyntlie  and  copu* 
lativelie  \'tr.  that  wilfaUie  be  fauo^r  and  partiall 
mtianes  and  temerariousUe  this  pauntll  ■■ 
aasysor'  hes  acquit  James  Gordoun  agatiist 
noltoV  and  manifest  knawledge  Beeaus  in  law 
temeraritie  is  nocbt  ane  cryine  ralea  it  be  tu- 
dersttiid  with  a  preauppositioun  of  wilfiilnea 
and  dole  q'lk  is  asseotiallie  requyret  in  all 
cryinesi  aa  is  at  lenth  enncet  in  law  and  rea* 
sooe  and  w^thouttbequhtlk  teraerahtie  resolre' 
i|)g' in  ane  iiivoluntarie  ignorance  iucidenl  to 
the  liest^  can  nalher  be  schwnnet  nor  pvvnei^ 
in  ajs^ysors  quba  one  yair  aitbes  ar  nocbl 
obleist  to  vindicat  yair  judgment  from  error 
hot  trom  depravation  n  be  partialietie  aa  at 
length  is  schawin  in  law  and  la  constant  b« 
the  33  act  parliament  d  Jaoo.  primi  Q^nhair 
the  oath  precsry  vet  to  all  judges  is  That  thay 
sail  determine  all  canss^  acooirding  to  thair 
cwnning  and  skill,  absque  favore  odio  frauds 
vel  roUire  aUquo  juxta  suas  scientias.  And 
y^foir  gif  yis  pannell  have  delvverit  accoirdiog 
to  yair  conscience  (aa  my  lord  adao<:at  hea  ac* 
know  leg  it)  albeit  i^orantUe—thay  cannocbtbe 
indytit  de  teoienirlo  \el  illicito  juramcnto.  As 
the  law  in  the  ma'tie  spciketh  seinp  tbay  btif 
done  all  that  was  incumlient  to  thame  in  yair 
deutie  vpone  y'  oathe  And  gif  thay  had  dona 
vtberwayia  without  res|iect  to  thair  awb  knaw^ 
lege  and  conscience,  albeit  yair  delyueraoce 
war  sDppoaet  mateiiallie  just  thay  aotild  b# 
teyntid  with  tbnnall  perjurie  qMk  is  only  the 
cry  me  pwneiBchable  in  judges  in  all  1awi« 
und  in  the  law  of  ye  maiestie  k  emphatic&llie 
qualifdt  w't  the  word  dtjerant  aAd  ilhcitum 
*  juramentiini  de  pena  temere  jtirantiiim  sup«r 
asfiiaamq'ik  an  nocht  quadrat  to  ignorance  al- 
beit nevir  sac  gros'  Because  no  nan  is  ao  bias- 
phemons  as  to  aw  ear  tbat  he  tall  not  err  ign<>- 
rantlie  And  thair  is  ^reatdiiference  betuix  ana 
ignorant  assyaor  and  ane  fals-  assyseorf  betuix 
ifjfnoranceand  flilset  qlk  being  the  adequat  sub- 
ject  of  ye  act  and  rubrick  being  concearcd 
tbua  (anent  fds  assysores  in  criminaU  cans*!!) 
nr'iu  ihe  alternatives  ar  jovnet,  erinceth  that 
they  are  to  be  takin  copufativelie  for  other- 
wayis  temeraritie  or  erroV  w'thout  wiliuhiet 
could  noobt  iinporte  falaet  in  aaiysors  becauae 
ill  law  nemo  tenetur  fattti  ni^  «ciena  et  dob 
malo  tl\  ad  legem  Corneliam  De  Falsia  L«  9  ^  j| 
et  per  totum.  Et  non  nisi  dolo  malo falaom  eom- 
mittenteai  crimini  aubiungantur.  Co^K  eodem 
L.  %<>*  And  b«  lbs  17  act  of  tbe  6  pMrtiamcnt  oC 


187] 


S3CHAULES  II.      Proceedmgiegainai  Alex.  Blair  and  aiher$,     [128 


long  James  tbe  secund  officers  ami  jadges 
irespassintr    in  yW   otHees  wiUuIlie  or  only 

{iwneiscliable  et  imperitia  in  sc  non  est  de- 
ictuiD.    L.  ftiiali  fl*.  de  variis  et  extraordinarus 
judiciis:  vU  per  Improdentiam  in- 

ter pretaiurjusticiaiu  juris  qiue  dicitiir  stukitia 
L.  si  per.  imiNTudeutiaiu  de  evictione  et  lata  cul- 
pa, c|ualiB  est  error  iuris  et  iatua-temeritas,  iu 
crimiualibns  non  equiparatur  dolo.  Clarus 
quest.  4.  num.  1.  precipue  vbiagiturde  pena 
cor^iorali,  vel  infamia.  Glossa  in  L.  ac- 
tionibus  in  verbis  oon  etiam  ob  culpaoi.  ff.  de  ju- 
ramento  ut  litem  et  quelibet  causa  et  le^is  I'a- 
tua  temeraria  imo  bestialis  excusat  a  duio  et 
peoa  intamie.  Farin.  quest.  9  per  totura :  et 
Ofunes  decores,  et  oona  fides  etiam  ex 
rationibus  irrationabilibos  et  tcmerariis  cau- 
ntur :  Non  solum  in  iis  que  sunt  a  jure  per- 
missa  sed  etiam  que  sunt  de  jure  prohibita  vt 
homicidio  falso  periurio  crimine  lese  maiestatis, 
ibidem.  And  tbaiifoirtemeraritie  in  itself  can 
pot  be  ane  cryme  vples  it  be  takin  copula- 
tivelie  witb  wiUulnes  quhilk  is  snbioynct  in  the 
act  of  p'iiament  not  alternatiTelie  hot  exigeli'. 
icklie  as  the  27  act  of  king  James  ye  tlirid  p«r. 
6  partiall  malice  or  iqniorancie  is'takin  copii- 
lativelie  and  ar  joy  net  l)othe  in  the  rubrick,  be- 
ing conceavet  wiltoll  and  ignorant  error  of  as- 
^sors  and  in  the  body  of  ye  act  notwithstand- 
ing the  designatioun  befoir  in  thaise  wordcs 
partiall  malice  or  ignorance  falset  or  ignorance 
ar  y'eAir  joy  net  in  ane  word  the  said  falset 
qubilk  is  subioynet  ef\er  the  alternatiue  of  ig- 
norance or  falset  and  repoitting  l>oth  et idences 
that  ignorance  is  taken  copulativelie  w't  par- 
tialitie  and  iuipoirtcs  only  wilfull  and  partiall 
ignorance  and  falsett  and  noclit  simple  ignorance 
end  temeraritie  quhilk  in  na  law  is  pwneischable 
in  respect  qr'  of  the  dittay  can  nocht  pas  to  the 
kaawlege  of  ane  assyse  becMie  in  ane  alter- 
native sense,  disjoyneing  temerariouslie  from 
wilfullie  it  is  absurd  and  irrelevant  to  infer 
the  payne  of  infamie,  against  honest  men 
quha  hes  done  consciensciouslic  albeit  (gifand 
and  nocht  grantand)  erroneouslie  and  in 
ane  copulative  sen's  my  lord  aduocat  will 
nocht  sueir  that  he  nes  iust  reasone  to 
persen  it  since  he  bes  dyu's  tymes  acknow- 
{egit  that  (in  his  opinioun)  this  panneli 
hti  done  iuuocentlie  and  accoiding  to  y'r  con- 
science, 

It  is  alleilgit  farder  that  temeraritie  is  nocht 
relevant] ie  qualifeit  be  the  allegit  iniquitie  of 
ye  panneli  is  sentence  because  in  law  non 
qucvis  ignorantta  aut  iniquitas  temeritas  est, 
sed  quando  jud(>x  rcsistit  jurt,  actum  a  jure 
diserte  prohilntuin  faciendo,  vel  eius  precepta 
sine  ratiuuabili  caua»a  negligendo  :  doctores  in 
cap.  dilccto  de  sententia  exromunicationis  in 
sexto  i*tqaundo  judex  constitutionis  temerarius 
^t  violator.  Cap.  1.  eodem,  Et  quando 
sentcntia  fertur  contra  jus  constitutionis,  non 
aotcro  contra  jus  litigatoris  Cod.  quando  pro- 
focare  non  est  incease.  L.  S.  Nee  quando 
enratur  in  facto  et  ex  causa  probahili,  quo  casa 
prdato  Bun  irrogatur  pena,  et  si  fulmco  gra- 
Tissimam  excommqiucationis  ii|iustt  strioiieEit. 


Decretal.  De  sententia  exconmnicatioDis,  cap. 
48,  vbi  glossa  in  verbo  .  prvhabili  affirmat 
errarc  ex  causa  probabili,  qui  errat  in  proba* 
tionibus  dubiis,  quhilk  the  law  intorprctis, 
quando  reus  non  est  plene  convictus  per  COB- 
spirans  ti>stimonium  aut  onmimodam  oonfes- 
siouem  facti  ct  qnalitatcm.  Cod.  de  penis. 
L.  IG.  And  in  the  act  oi'  parliament  1478, 
q'lk  is  the  grund  of  the  <littay — ^nocbt  cverie 
acquittal  of  trespassors  is  qiialii*eit  wilfuH  and 
temerarius  hot  qnhan  thair  is  noCtor  nr  ma- 
nifest knawlegeof  the  trespasser;  and  noobt 
with  standing  yr!of  assysors  temerariuslie  and 
wilfullie  acquittis  tliame  Qabilk  can  non  qundnrt 
aganis  thir  persones  impannellit  becftus  the 
verificatioun  adducet  be  my  lord  aduocat  wm 
nocht  of  the  evidence  as  importeth  in  tbe  k« 
notorietie  lieing  only  ane  qualifeit  confrMiaia 
q'lk  cannot  be  captiouslie  diigoynet  and  ia  moir 
a  deny  ell  than  a  ooniesaioun  acknowtedging 
the  fatal itie  of  the  fact,  hot  denying*  the  forw 
malitie  of  intentioun.  For  in  law,  Notorim 
est  quod  set»e  aperte  in  ocuUmi  iagerit  et  noHa 
tergiversatione  et  causalione  celari  potcat.  L. 
sed  etsi  uu  pill  us.  ff.  de  institoria  et  actione. 
L.  palam,  ft*,  de  ritu  nuptiarum*  L. 
if.  De  verborum  signincatione.  £t 
doctores  ad  eas  leges :  ^t  notorium  cat  euoa 
oianes  sciunt  qiuindo  nuUus  est  locos  inocia* 
tioni  ct  cuius  vniverste  vicinias  populusteatia  apt; 
cap.  cum  delictis  filiis,  s.  presertim.  deorat.  dt 
purgationc  canonica :  cap.  cum  scelus  caoa 
prima.  Quest  1.  Dammoderius  in  praxi  cri- 
minali,  cap.  10.  speculator  de  notonOi  per  la- 
tum. £t  quando  reus  ita  iu  obiecto  flagitis 
deprchensus  est,  vt  vix  ca  que  comiserat  Be| 
suliiciat.  Cod.  dc  penis,  L.  16.  Et 
suflicit  quod  factum  sit  notorium  nisi 
etiam  siut  qualitates.  Et  non  suflicit  quod  eon- 
stet  lejum  occidissc,  nisi  coustet  etiam  qiml 
nulla  discussio  vtl  excusatio  cotnpetit  leio  %M 
minus  punii>ndus  sit,  potest  enim-  fieri  vt  ( 
dtTctM  sui  defcnsionem.  And  y'rfoire 
ye  quahteis  q^rof  the  cryme  cousistis,  viz.  . 
James  Gordoun  intercommoned  wilfullie  i 
wittiuglie  of  foir  knawlege  and  set  pur[ 
knawing  the  meittin*^  of  the  rebeUb  ana  tiyil* 
ing  with  thame  for  toat  efiect  was  nocht  oqa* 
staut  to  the  assysors  be  the  paimallis  oonfts* 
aiouu  or  vtherwayis  Bot  in  the  contrair  Iks 
panneli  James  Gordoun  excused  his  material 
confereuce  with  the  rebcllis,  affirmeing  pse^ 
bablie  that  it  was  nocht  wilfullie  Bot  as  sin- 
drie  vtheris  knawin  to  thame  selffis-  in  the 
countrey  quhair  they  duell  that  he  was  anv* 
pryset  and  necessitat  be  just  fieir  qui  vaimi 
cuderB  in  constanlem  virum  it  cannocnt  he 
said  that  this  panneli  lies  acquit  him  agahsift  { 
nottor  knawlege  and  evidences. 

It  is  lykwayis  alledgit  be  the  said  Mr.  Ib'e 
as  pro'r  tor  the  panneli  that  the  dittay  is  ea- 
way  is  relevant  as  it  is  dcclairct  be  my  loid 
aduocat  insisting  only  against  this  panneli  iir 
acquitting  Jam(»  Gordoun  of  intercommoBiHff 
wittinglie  because  y'r  can  nocht  be  a  dittay  i 
error  bot  ibr  acquitting  ane  uottor  tresps 
of  a  cryme  as  the  act  bciris  quhilk  is  the  | 
8 


129] 


Up«m  a  PrMtti  of  Error. 


KH.  ifiSl. 


riao 


wi  the  dltf^:  Bot  sa  it  U  timt  int^rcotnriKiniii^ 
wit:  '  '  ;  itiiQi  takitt  abstrecUie  ironie  >ei|ya- 
tit:  [»A9t  Ira  is  nut  a  cfjnie  ftnd  id 


144}  vtrha  mmt.  That  tuuie  presume  or  Ulkl 
vpoDe  band  to  recept  !fuppli«  or  iDtercoromci 
Ciueae  Marie:  pari.  1535*  act.  GO,  tcrba  tunt^ 


iuckucii4  Lu  dio  betvl  being  Htirpr^^ci  ^vitb  a  )  tending  to  fiteir  liie  ht^arti^  of  subieclis  to 


iBUitilutle  ot  rebiHIiaqiiliimie  Umy  ktitw :  And 
noiwitltfcttiniling  ihn^  knew  tliame  may  inter- 
teioe  with  ^eiterHU  dbcourse  and  ar  nocLt 
DbleLH  tn  imtot  tliaine  wilbisullaitnes  and  si- 
lence and  be  a  ftKilisb  nyccfirs  to  tentor  yair 
Ivves  And  ni  la^v  wilfumes  beiog-lheessennail 
AfacAce  »f  all  crynwa  cannot  be  sttp^ieat 
A^Ome  thattie  without  irretevancie  and  absair- 
ditie.  Ciiifii  lualHicia  propo«itiim  ot  volunUi!9 
di8tin«(Uit :  L.  ({iii  tntnrie*  fl'.  De  furtis  In- 
•tittUioiijhus  de  obli^ttonibtis  t  And  in  :i)l  llie 
rrimin:dl  cdtcti^,  and  iDtordictis  of  the  law  nnd 
prmj^matikis  and  itatuiifsof  all  nationes  dole  and 
wilJ  is  evir  requyret  and  pwueinhct  in  crymca. 
I>e  furtis,  L*  1, ».  3,  f  bi  iVaiis.  L.  5J  vbi  Toiuntaa 
et  prmtoattunif  L.  47,  s^  7,  L.  2d,  •.  *l.  librani- 
la,  L,  5,  s,  Q.  Vbi  dolus  malus.  Titulo,  si  is  qui 
nenti)  Liber  jusaus  erat  corapissc  abquid 
liminarm  rerba  sunt  si  dolo  [italo.  ff. 
de  y\  Ixmorufy  raptonim  vbl  dolus  mnliis  pa«i- 
•im.  l^%  «.  8  ct  %  L.  4^  a.  4»  ff.  De  in- 
cetKliis  el  roinaf  vbi  didtta  inulua  in  fronte 
«dioti  ;  et  liluji  ibidem.  L.  3,  s.  7  ct  8,  vbi 
Mientja  tt  priidentini  et  L.  19,  b.  1,  vbi  data 
opera,  fT  de  ininriis.  L,  ^^  i.  vbi  afteetus  ex 
quocrimeD  conutslit,  L.  11,  vljt  do|ii!4,  s.  do 
esli-aordinaniscrinHiiibua  %'bi  ilaU  opera.  L.  4, 
9i  miDius.  L.  7.  tf.  De  sepukhro  vj^daiu,  vbi 
d#liia  tnalua  in  Fronte  edict).  fH.  i>i?  prevarica- 
tione,  vbi  notio  verbi  importat  doltim.  i\\  ad 
Lii^em  JidiMin  tnaiestaus.  I>.  1,  vbi  dolus  de^ 
litiitionem  uiKreditur.  L.  4,  vbi  quater  rejie- 
titor.  ff.  ad  Legem  Juliam  de  odulteriis  vbi 
acicrttia  et  dMu  nmio  jiin^untur.  L.  14.  vbi 
Cunvilinna  et  dolus  raaUis:  ad  Le^em  C'ornc- 
liBm  de  fiic^ariia  vbi  tlolua  nia]tii»  in  iniuo;  ant- 
muB,  s.  9  ;  vobuitas,  L.  14t  fiiH>nk%  L.  10.  ad 
Legem  Cnmeliani.  d«  folaia,  per  totals  g,  ad 
Legem  Juliani  d«  Annona.  £t  ad  iJfmtx  Ju- 
liam  de  peciiflatOi  ct  ad  Legem  Juliam  de  »a* 
critopiiis,  povtm.  Et  ad  l.x><^em  Juliara  di*  pla- 
gianw,  vbi  srieiis  et  dob  mailo.  L,  6,  t.  9,  Et 


I  iuniu 


aid  ienaitii9-rmisultuni  Turpilianoriim.  L.  1 
vbi  mm^%  »emper  apectantbi,  9.  3,  el  5.  et  in 
mmmib^Bm  iot«nticriadc»lfisantintelligitiir,aiit  ex> 
fntelllir  :  *r  qnnrum  bononini  ne  vis  *iat,  Stc, 
^d  Aeliumat  q'lk  is  rrimen  gcmerkum  H  mlu 
mpm^m^  ^hair  ye  occurence  of  ane  stmnge 
caioB  qaadtvtis  not  to  ony  perticular  faw  i« 
defyntft  <*  pea- dolum.'*  ff.  47.  »it.  yO.  de  stel- 
lioiMtu,  et  eodice,  iiadera  litulifl  supra  citatift* 
MarcvM  Otafiiaf-  Cooalio  88,  wiinc«»<«9  that  ye 
^j%  «f  |nngraietlce»  sgainti  crymes,  et  a/r- 
€^€t  the  recTeptingof  baukf},issp^l4Jt30a  menU^ 
Of  frtlflillie.  And  in  otire  awin  aetis  of  p^lia- 
:««nt  doilfia  or  \\dfu)Bea  li  ayer  ejq»re9sft  or 
iinplyit  in  woii^is,  deaotttiig  it  aa  (ihat  nane 
presume  or  tak  vpone  band)  **  qusc  veHia  sup- 
[«oniint  doltt)0»/'  Ginrba  C-on!*trio  28.  Quest. 
m\  FarriBiymii.  S8.  V  '  '  c«dii  fi,  1667. 
act.  5U    Tliat  naneiY-c  or  monteine 

«r  tryst  tfi rtjfrt  e#t«et :  thu  u-niu  la  ^mpbalick 
iJiipoirtiog  wiU'iilaca,  J<iUi.  e,  par,  l&»i,  act 

VOL. ; 


haitred  qubilk  implyi?  ane  wilful  inttiulj 
Jacob.  Ct  1364«  act  'l29i  verba  mn(^  cod  ten 
tuouadeclyneing  of  bis  bienes  judgement  H 
that  nana  sail  presume  nor  take  vpone  band 
And  in  tbe  act  130,  eodetn  parliamento  verb 
oadem  et  act  134  eiirsd  pariiamenti  veH 
6.  patliatiieoto  10.  act  10.  verb 
^^  54.  parlia.  6.  act  17.  verhu  j 
ttHieeiiitJBHaaBmg^  trilluHie:  Jacubi  i*  par. 
Cap.  54?%rlm  sunt  that  oane  raifie  ane  fray  in 
tlie  hoiA  wilfulbc:  J9ci»b«  1,  Parlia.  3  Cap.  37*/) 
That  nane  recept  or  doe  fauor  to  rebel  I  is  wil* 
fuHie:  Jucobi  5.  )«r.  3.  cap.  5,  Anent  willul^l 
tyre  raising  :  Jacobi  sezli  par.  primo  actii  vi«I 
ttmo  verba  eadent:  Jacobi  &  par.  7-  octu  97,  f 
That  nane  recept  or  doe  tauor  to  relieltiti  wit*»l 
tin^li^  or  wilfiillic:  Jacolii.  6.  par.  3.  Aelu  4.6* 
Agunitt  wijfuli  umnteyneris  of  erroniusdoctrioes  ' 
111  lirif*  Jat  obi  6,  par.  IS.  Actu  164.  verba  suni*  \ 
'  Ml*  that  recepts  or  interteneia  lilting* 

ij'  piene  jesuilcs  :  be  all  qubdk  allega/*  j 

Ifooes  It  is  evident  that  ncknUa  sine  doio  tt  \ 
htniatein  nocbt  an  eryine    £t  accipit-nda  i 
semper  ^cientia  eias  qui  piH>hLberi  piJit^t ;  ft  d^l 
nuiiiabbussectiuuibus ;  L.  in  dilictiii;  Caitfluii;  <1# 
aii\ilinin  prestante  ^lost  delictum  ubi  sinemer  et  j 
dolose,  ar  qiiaJitei^    necessr'lio    requyret    im\ 
criinine  receptatiums.     And  v^lbir  it  is  cottstan^l 
tiT.tt  miercommouLD^^  willinglie  without  ye  qua«* 
bte  wtifull  caa^  uucht  be  tbe  ground  oi*  an 
dittay     Nor  the ^eqi tilting  of  i 
wttiio^Hef  the  ucquitttLig  of  ane  trespassor,  ani] 
\it€  u[TOtiiid  of  tbe  diiiay  of  ern)r     jlnd  the  al- 
tei  native  coneeptioun  of  the  act   cannr^citt  ito<* 
[lorrt   thai  lulflipminonin^  wktinglie  uithoufj 
wrHullie  issiJM^Ktt  to  lyle  p^teis  of  ansea-- 
pitall  cryirie  becaii«:tlie  quabieia  witttngfie in^  ] 
wiifullie  ar  to  be  takin   compicxe  as  tliay 
taktn  in  all  criminall  atatutis,  and  the  impro^  < 
priatioun  of  ye  disinnctiue  is  mair  vsnale  aitd  J 
to]lerab)e    Ibau    the  barbarua  ab^urditie  that  j 
aonld  tnsew  vpone  ye  takin;,' of  tbarne  separ*] 
ateHc  viz.  thai  ane  cryme  sookl  be  niiboat  iti}|  1 
and  iotenttoun  and  tfiat  Wahn*  Hat  and  otbet 
gutd  subiactis,   becaas    ihay   hati   intereoitt* 
moned  witttiiglie  being  tsurjiryset  am)  lorcet  m 
to  doe  for  feir  of  yair  lyvcs  sou  Id  be  lyable  ii| 
eafHtall  gitilt  and  puueischment  aeetog  aliitiilei 
ptmientm    facta    capitaliter  requh^nl  «k>litni|  \ 
vtmm  ii  eius  naentio  non  fiat :  £t  multo  magii  ^ 
qnando  impoaitur  pena  pro  eo  quod  de  Jura 
comuni  mm  est  pttnibile;  aa  intereommmiinjf 
with  rebellis ;  Et  quando  de  dolo aliqiio  moflo  rit  , 
mentio.    As  in  the  act  of  parliament  be  way 
of  altenmliver  Far.  quest.  90  Num,  ^'2.  vsqn^  { 
ad.    $a.     Et    inteUigenda    sunt    statula   pe* 
cundum  meutem  atattientium.     IViascant  d« 
generaltslatutoraminterpretatiorie;  concluston«  j 
3a.  Num.  4.  q1k  \&  argued  be  (tie  motive  and 
end  of  tbe  legislatonr  e\pre«!s»ei  io  Ibe  alaiateft 
As  in  tbe  present  caice,  the  reprcsaing  of  re- 
bellis  be  taking'  from  th&me  all  manteoance  and 
comfbrte  qnhuk  is  not  prtiiMifct  be  iorr 
k 


33  CHARLES  II.      Proceedings  against  Alex.  Blair  and  others,       [132 

that  he  was  violenced  ia  his  stay  with  thanM 
Quhilk  asseveratioun  of  the  pandell  beios^  pro« 
bable  in  the  generail  and  in  the  particular  se- 
cundit  widi  tlie  declaration  of  some  of  y* 
number  ancnt  the  violence  vset  be  the  rdwlni 
in  schootint)^  the  durris  and  kei|iiDg'  in  James 
Gordouu  sould  haue  preponderat  ony  slender 
and  remote  presumptiones  adducet  be  my  lord 
aduocat  to  infer  the  qualiteis  foirsaidis.  Quim 
in  criminalibus  probationes  debeant  esse  luoa 
meridiana-clariores  L.  iinali :  Cod.  de  proba- 
tionibus  qus  reperitur  canonis  causa  2.  quest. 
vltima  capite  sciant  And  some  of  the  best 
criminalists  maketh  scruple  to  condempoe 
vpone  presumptiones  albeit  yaur  war  nevir  so 
niony  and  pregnant  Etiamsi  essent  mille  } 
Paulus.  de  Castro  :  quia  presuroptio  non  en 
Veritas  sed  veri  similitude  And  q'as  the 
dittay  qualifeis  the  error  of  ye  senteooiL 
be  tne  notorietie  of  the  qualitie  wittiuglis 
and  that  James  Gordoun  confernt  with 
ye  rebellis  knawing  thame  to  be  rebellis  and 


ISlj 

occasirmnH  intercnnimoniiig'.  £t  iutelligenda 
sunt  statuta  uiagis  secundum  intentionem 
quam  funnalitatftm  verborum.  M ascard.  Con- 
c'hisione  prima.  Num.  9.  Et  secundum  jus 
conimune,Consiiio  2.  per  totum;utrationabilem 
seusum  cuutineant  et  ne  videantur  statUentes 
ea  ex  abnipto  siatuisse,  etiamsi  essent  verba 
impropriand :  ut  ne  absurdum  contineant  et  non 
Judaice  secundum  corticera  verborum,  sed 
))otius  secundum  veritatem  quam  rudem  fig>u- 
ram  statuti.  Et  ne  quis  inda>ite  daroaom  par- 
tiatur  ibidem  et  nulla  juris  ratio  aui  equitatis 
Iteni^itas  patitur  vt  quoe  salubriter  pro  vtilitate 
honiinum  introducuntur  duriori  interpretatione 
contra  eonim  commodnm  producamus.  ff.  de 
lecribus  ].  25.  Et  |K>steriores  legfes  ad  priores 
pertinent  vhi  ogitur  de  interpretatione.  L.  25. 
ibidem.  Et  in  le^jem  committit  qui  verba  am- 
]4lexus  contra  leges  nititur  voluntatem.  Cod. 
de  Icgibus.  L.  5.  et  exempio  graue  est  ita 
l^troncs  requirerc  et  innfx^entibus  liat  pericu- 
liim :  Cod.  de  his  qui  Latroncs  &c.  L.  2.  in 


ilnt;.    And  y'foir  since  the  common n  law  anjij  that  thay  could  nocht  half  acquit  him  of  in- 


roasone  rcqnyrrs  willull  dolll  and  omre  auin 
law  be  aue  act  of  kii)S>:  James  the  first  pari  3. 
cap.  37  puiieisches  will  iill  recepting  of  rebellis, 
the  nileruative  conccptioun  of  the  97  act  of 
king  James  the  fiflt  his  7  ]>arUament  cannot  be 
takin  striollie  in  a  Judaik  construction  as  the 
law  spcikis  dcboirding  from  the  commoun 
straync  of  law  and  of  all  crimmall  statutes 
Aiitt  the  dittay  iiassini'i'  frame  the  qualitie  wil- 
f iillie  is  altonriddcr  ii-rorefaiu  and  may  quadrat 
alsAeil  aspunis  Walter  Hay  and  the  maist 
hrivnll  suliiectcs  in  the  land  as  against  the  most 
gdiirio  inlorcoiiimoneris. 

It  i^  fHnler  cikit  for  the  pannell  be  Mr.  John 
NisIk  t  thiit  the  diltay  is  nawayis  relevant  qua- 
litt'in<r  the  pannell  tu  half  acquit  James  Gor- 
doun wilt'iiiiis  and  tcmcmriowie  be  the  al- 
ledgot  iiuqultie  of  the  sentence  Decaus  thair 
verdict  is  iK^cht  fals  and  temerarius  hot  weill  and 
warr.iutablie  ddy^erit  In  sa  far  as  the  ciyme, 
y'of  James  Cordoun  was  acquit  being  inter- 
commoning  consisting  nocht  only  of  confer* 
f'nce  with  rebellis  hot  of  a  wilfull  associatioun 
with  thame  of  foir  knowle<1ge  be  try  sting  or 
Ttherwa>  is  as  is  constant  in  law  and  be  the 
itraine  of  the  act  of  parUament  and  it  being  re- 
mitted to  this  pannell  to  try  quhidder  James 
Gordoun  had  intercommoned  wittingUe  or  wiU 
linglie  thay  delyuerit  that  he  was  free  of  inter- 
coinmoning  wi&ullieorwittinglieoffoir  knaw- 
ledge  of  yr'  meittin^  or  cumming  ffor  ony 
thing  that  was  provem  My  lord  aduocat  to 
quhonie  it  was  mcumbent  to  prove  not  only 
conference  witli  rebellis  hot  thequaiitie  y'of  the 
cryme  ccinsistis  baveing  adducet  nathiug  to 
astruct  it  and  it  nocht  being  constant  to  thame- 
sclflis  in  yair  own  knowledge  but  the  contrair 
in  the  generall  that  many  guid  subiectis  in  the 
places  qr'  thay  duell  hes*  bene  inveglet  in  con- 
ference with  rebellis  without  ony  disloyall 
intentioun  or  practise  and  ye  first  pannell  viz. 
James  Gordoun  disarowing  vpone  his  greiC 


tercomnioning  wittinglie  In  respect  of  ya 
verificationes  aducet  by  my  lord  aduocat  and 
that  it  was  not  deny  it  be  James  Gordonn  that 
he  spake'wilh  thame  and  at  that  same  tyma 
knew  thame  to  be  rebellis  It  is  answeirtt  that 
yair  meaneing  in'  acquitting  him  of  intcrcom- 
moning  wittinglie  was  not  that  tliay  said  that 
ho  knew  nocht  the  rebellis  but  that  thay  fand 
him  ftie  of  intercommoning  wittinglie  aa  h  is 
takin  in  the-act  of  parliament  in  ane  copuli^tiTa 
sens'  with  wilfullic  and  as  it  impoirtis  a  vdiiii* 
tar  ingadgeing  in  the  companio  of  rebellis  of 
foir  knawledge  knawing  tliame  to  be  rebeHia 
And  the  occasioun  of  yair  meitting  qlk  is  tba 
only  meaning  of  the  act  of  parliament  and  of 
v'  delyuerauce  conforme  qr'vnto  the  coonsdl 
jies  dismissed  without  censure  sindrie  chal* 
lengit  for  reccptinff  knawin  rebellis  Aad 
namelie  ane  Prat  and  his  assolzeit  thame  of 
y  'r  reoqiting  wittinglie  or  wilfuUie  becaus  tfaey 
war  Burprysitand  could  nocht  resist  thame  And 
^'ras  the  error  of  ye  sentence  is  ag^praraled 
in  respect  that  vpone  the  sole  declaratioun  of 
ye  pannell  they  naiff  acquit  thame  and  oon- 
sequentlie  done  quhat  in  thame  lyis  to  infeil 
and  emancipat  all  men  to  intercommoun  ypoiit . 
hoipe  of  passing  frie  vpone  thair  awin  deda^ 
ratiouu  that  yau*  intercommoning  was  fortute 
and  against  y'r  will  It  is  answerit  that  albAt 
the  pannell  had  nodit  dedaret  and  asserent 
bis  innocencie  thay  micht  haif  acquit  him  The 
cryme  and  the  essential  qualitie  of  it  BOcfai 
bemg  provin  vnto  thame.  Quia  actore  mm 
probante  ahsoluitur  reus.  Aod  nothing  baiog 
vset  to  verifie  the  cryme  hot  bis  awin  dopo-  . 
sitions  quhilk  he  qualined  confessing  intetcom* 
moning  with  the  qualitie  of  fortuite  and  na* 
cessitate  quhilk  exniattis  ye  cryme  and  impltoet^ 
lie  denoitted  in  nis  depositiyones  be  thaiit 
wordis  that  they  come  to  him  to  his  awin  riot 
and  was  yair  liot  half  ane  hourflb'  and  had  bo 
discourse  hot  of  ye  lane  of  ane  pistolet  quhilk 


Mthe  in  his  depositioncs  ony  oommerce  with  .  he  refuisetand  tliat  they  come  to  ye  hoasaq'r 
Iktme  and  pobnctlie  in  judgement  afirmeiiig*  he  was  at  nyne  iio'is  at  night  bodin  botlit  >ttM 


upon  a  Proceu  0/  j 


t5fm:*;\vltli  ^TTinnnnM  and  ivith  the  iiumWrthiit 
K»  ^lioutdiinrrer  oppose  iKame  All 

<J'ii  uices  iih|K»rtetli  surprysi?  aiul 

rioltiwcii  i  el  iiuius  nif'tus  qui  poleiil  liilere  m 
oolistaiitem  virum  :  q*lk  hequalitie»J^'Vfk'r  ex- 
firesslie  in  judgment  nffirmeinqf  vpone  Uh  ^rii 
aatlie  that  ye  lUtrris  wjir  schoit  anti  y*ihir 
txmi'csisii)  qi)ftl»fica|JH  hod  Mhh  ^cinili,  Balet. 
L.  1.  DurtK  43.  Coil,  rie  confessio.  FariQ.  Qufst 
iW.  iitMti.  149-  et  16a.  Mt  precipu4»  in  ii^ 
vpee  noil  ftirii  jurccomnnirii  prolitbita  ncc  Jia- 

Cent  contra  sejnti    •        ■     ■•  ^ -f  qnando 

^dlilas    atite     j  bus    vel 

(Ifesiimptiombus  ;  4.^,.. .  ..u,^.  ;.,>ii  conKtal 

*le  ddictifiqiiafii  per  conlHsioneni.  Q'lk  co«- 
diliones  qtjjKJdraiUs  jire^uanttie  to  thf»  present 
caicc  the  qualitin  of  the  surprv&e  litin^'  i>ro- 
Imble  in  the  ^^encrill,  tind  kimwln  to  hoirt*  ucne 
incident  to  n;  ^udiectisuud  in  tlibcaice 

ihecrymcbi  .  nl  no  vrhrrwayis  against 

the  pRnndt  nor  he  hh  awio  conr«i^imni  ami 
the  iledar:i(nKiii  of  puinie!;  vponc  oalhe  fnay 
lie  Riit^ '      '  . .'  and  informarive  to  as- 

sy sonj  <'d  waiTanlnble  be  judges 

i.d  ijn*b'iiniuri)  innncentiam  OHe  in  aninio 
<5onsiseit.  Be  ibe  law  oi  God  Exodi.  cap,  22. 
vt*r-''  -  ■i-^-tino  de  furtis  Hcfutcr.  cap.  21.  de 
c»  r  cap.  6.  verMi  1%  ije  uxorc  kus- 

jK<-,_  l»  Mk?  t'ivilelaw  per  tertwm  in  L, 

tbrtr.  ?.  /T.    de  his  qni  nntantnv  in- 

Jamia  ',  •  crbn  innoccmiam  :  et  Decins 

16(S  ;  nil;  :::,•  i,i  -•':r,;.|M;ii  iJ  ;.•',.,  r:i  (iinil  ITei 
€Uni   jtlf,ii:r  Lit'"  ;    (jinu  tlrju'insrsil  iny  s  ,ib  ariimo 

ttatuf  juramentu  vm%  de  cuiu»  anirno  dnht> 
tatar;  L.  1.  C'od,  <le  iirani<i  et  ahis  ah  eo  citatjit. 
ICt  GfrvttiB  Lib.  2do  obnTvatiouum  cntp.  loo. 
Im  m  cafnerd  judicatura  rcrerl,  Anrl 
fjuhair  as  the  painmtliR  inlcrconimon'mfr  ^i^. 
Sumr"*  Uordoun  is  ng^ravatit  in  thai  he  advt»r* 
l*risrd  nofbt  the  wrXrol'  ye  scliyre  of  y'  being- 
in  the  cunt  fit'  that  he  hiui  nn  licence  to  inter- 
mm  mo  u  n  u  I » '  •  • ' — f  f  Vn  m  h  i  m  e  an  d  h  e  folhi\red 
thnnie  not  vi  -I  ery    It  is  ans*rit  that 

the  viarrnntl  ,  .   ut-e  of  ane  s'reffis  i*e 

quyrit  quhen  ane  pai'tie  <br  *iome  caus  intend - 
etb  ill  riMjfer  with  rebellis  and  the  irant  of  nne 
^f  jot  be  impnte*!  to  pairties  isnrprv- 

«it  w:ir  no  necessjitie  to  odvertis*  \\\e 

niAgifiirtidM  ot  ye  fet»elhx  being  in  the  cuntrlc 
becailA  tt  WM  nottourhe  knnwiu  that  tliey  war 
maTin*^  up  and  dmm  the  cnntTie  and  the  fol- 
lowini^r  with  hoy  and  try  ik  incurabeul  tn  g^uid 
jiidg'c«  qnhen  they  ar  of  that  number  and 
pou'fT  as  they  may  oTcrtnk  thani  Lastlte  the 
not  '  '     '  "  '       '         of  rebeltis  ar 

<4ii  I'tniu^' quhnir 

l^t*MM>       J.iiJir    ,     S,      .,;  **;♦     ^^^1     ,j(;_ 

fjuitt  Amiquhnirn*^  luih  vittin^-* 

lieand  ot  iit.r  I  u  .^^  I  ,)             .,....,.    ikbeeou- 

■tont  Iw  and  tobtrvidi'ncit 

frtirii  111  ^       1)1  the  rebellin  ai»4l 

*Vr.  I  ourH^  he  had  with  thame  and  hiK 

iav  ;t     K'iir)jiiiiir   m\A    ios.tavintj   with 

thj  !xr,  and 

Ui«  ,ir*to  hu 

mi^iit  I  bo  prc- 

•umit  til  jctctg'  so 


Fd.  1681. 

neir  home  hot  of  inlcntiouo  to  interc 
fhiefiic  In  the  house  qr*  he  utayil  hcini;  ^nfpe 
to  haive  bene  the  haHwur  and  ramlcvnu^^ 
nhvllis.     It    is    ftus^rit  that  \m  1!  i^l 

bcirin^jtheoccasionuoflhairmeitiny,  el 

and  subj^^rt  of  his  oonferenre^  thctuJiu'it  r  ul  the 
relieihs  and  ihair  eqnijipadLje  and  funuior  with 
armes   thcit^  U»ot    hia  intcrcommr  t 

lliame  was  fortuite  and   |>assitie 
-       '    *'     ConsiUo  36,  in  6oe  Lib.  3,     ^  mwiv. 

Ntini,«4.      lU'belluH  did  non  | 
u^i  -jin  i»cT  nicLuin  ant  coacte  aliquid  fadt 
talis  dicitur   rebellio  psissiua,  \i  qnando  aliquis 
recppit  rebelles  qui  sunt  pinres  ut  non  p««6unt 
expelli  sine  pericido.     Bald,   in   L.    deHcliii : 
(F,  de  Noxialtbos.  Fortheoocasinun  of  intercom- 
moning^  with    thame    bis    depoailioun    bein 
That  it  was  nocht  wittinglie  hot  he  was  myt 
pryset  inexpectedlie  with   yair  cumminar  wt4<i 
that  thay  come  to  hts  close  and  the  house 
qnhaii  he  was  and  the  subiect  of  his  conference 
ileponet  U^  him  aneni  the  lane  and  refui^  of 
I  it  the  first  tyme  arg^uesthat  he  inter 
I  DOcht  wittinglie  and  knawing  that 
iii  IV  vvLu-  to  meit  and  to  cum  to  his  close  ¥cia|^  1 
It  Cimnot  be  prtsumet  that  he  %VMkl  haif  tndHti^l 
^ered  himseltf  to  no  end  and  vpone  no  in teti«| 
tioun  of  irenttie  or  accessioun  to  \air  pmcJ 
tises  and    the  discourse  of  the   rel»eliis    th9^ 
«ecound   tyrae    in    llas«jiewallis    overbard   b» 
tlie  panncil  impoirtelh  nocht  iniercommoning 
in  the  stihiect  lei  be  ye  quahtie  of  wilfullie 
or    utttin^lie    For    James    Gordoun  depones 
'inly  of  bi^  liearing^  tliame  relaile  some  of  \air 
doitiMis  and  deAig'nes  hot  not  of  ony  intercora- 
mnort'TititHin    of   discourse  and   it  was   nevir* 
hard  tbnt  heirinjj'was  ane  rrymc,  qiihen  p*tei0i 
dar  1.  Its*  the  dislykin/BT  of  discourse, 

if  til  ur  nioir  poweifuU  and   insolent 

and  boMiii  vviui  airmes  asi  the  rebelhs  war  And 
the  bcini^  w'l  rebeJIis  impuirtiK  nocht  conTer- 

siaiionem  itiicitamt  w^- -.-♦.'     -  .,..,.(  ....^ 

et  stricia ^  al ioq u  i  si  s  1  ^\ 

non    facit  judicium  ......... 

Farin.  Quest.  52^  num.  19.     Item,  the  plao 
of  the  second  meitting  qr^in  the  dittay  phicetl 
anegritt  presumpiiouu  ufthe  interrounnonin^^ 
«?ilfullie  and  consequent  tie  \vjtlins:lie   It  its  r<*»| 
tortit  that  most  of  uti  the  places  iHutiir  so  ncifj 
hiti  awin  house  h\»  May  thair  from  nyne  ho^ffl 
in  ye  moirniog  till  nyne  at  nv*t  the  compantvi 
qr'm  he  stayit  his  going   to  6ed  liefoir  tlie  re«  I 
bellis  and  i ignorance  of  the  tyme  of  yair  ryse* 
tag  eiinces,  that  his  meitttui^  was  not  witling"* 
lie  foir  intendil  aeiiig  it  can  nocht  be  prei^wrnel 
that  l>einj^  iio  neir  his  avt  in  hon!«e  he  iv}dd  half 
appoyntcil  a  mcitUnj^  in  so  puhlict  a    place  qr 
his  practi/es  with  the  rebel  I  is  iny*l  havt*  bene 
iltM'Overed  and  that  he  sould  haif  Htiiyil  ko  fotnj 
betoir  y^  cumiug'  in  the  com  panic*  of  honest! 
gcntilmen  and  etter  y'  cumiii^r  ^oold  haif  bensj 
•o  Strang*  as  not  only  to  atlord  na  svtpplic  unit 
not  to  l»e  maid  previe  to  yair  way  is  and  corre*l 
ftpondenec  nod  con^ious  of  yair  randiTons  and  1 
plaoes  of  recept  ns  he  hcs  ilepotiet     Bfit  to  b«] 
i|pior«nt  of  yair  jfoinjf  ^   ^»ed  and   ryseing" 
quhitkiacomuiaun^uid  fcllowsdiip  cau  no 


iS5] 


S3  CHA.RLES  II. 


be  fiCfiimet  iroles  be  Uiil  disl^'kit  the  com* 
janie  uul  mraoget  bifustlfF  iVonie  thame 
l^m  ibQ  Iyii44^  in  one  c*Ua  liner  u't  rebel  lis 
fji^m  not  8o   mui--l»  intt^nit  h  iuh\  f;iuuli»riiit^ 

,  w't  thtttne  lu  tlie  si  roftme^  kn^^ii) 

441  Y^  tiftatysu'rs  tuu  tmc^  ciin  uul   l#e 

#g)^iivvtiUU  trtifii  llje  {lincii  ii^  ^us^ifct  to  U*^ 
bttirU>ur  iif  reljejtis  becjitiis  it  w«»  iio'  \m  vfun  - 

I  iKitid  to  lite  paimrjlis  lUa  Vi:  Ituilfr 

'  lniili»  was  !^4.i  a  Miu^  .1)1  1 II  not  b 
to  Ibiiiuesf'ltfis  inay   c^uld  not  hiui  ik 
ground    ui    prt>tiiiiii(iito«a   iiofne  it    i 
vdag  the  ^>uonel  iW^uutt  vpuii   Uh 
Iba*  iic  kjiL'W  uot  q'r  tLe  rd>flli> 

tllftt    tUc    ilOUSC    Ol     UUn-M*^- 

pTf*:  .ou^e  qr'iltav  u««i  tu  belmr- 

'■    tci«|:s  ti4^ilk»nMI«*3i 

uoir  vi'^oit  a&  ttne 

vin  (juilt  lM.*!ijijs  thair 

-  i'uHt  iisaysii*  itoi  lun 

^Hnc  M  man  («)'lk 

)  and  tliiit  bf  melt 

I       A  lid  t  \tc  A>s  V  t^' c<^ 

bmudii    ^s    m%e 


PraeeeiiagM  aguiiut  Akj.  Blair  md  oikert,      [191 

boy  over  quhoroe  James  Q^wdoiui  Ind  pilvcr 

ntnl  qubumtf  be  micbl  liaif  Arot  fiirih  «t  aoe 

Htnilow  nr  |n'irat  way  whence  hr   niii^i  baif 

s«*nt  him  the  relndbs  niadtrrtan«r#'  -vjuI    lAiriiii 

«><  c-iMuic  iir  iuiprolmbht*  supptmol   i  '  'i^ 

ovMc^mit  that  yftir  uas  any  wuy  in  ^  mm 

Uvv  iii:a  iu»e  boy  niy't  Kaar  bcor  Ivt  ibitta  « 

thrJ  lluiir  T^  us  ony  Ikiv ^uboaMr  JacU4»  OonbllUI 

Atui  a  Qocbl  beiti^  f«rc>i»uiiie- 

lis  who  liad  »A  li^reai  rcAsona 

ivc*  and  quhu  lor  ^mr  awM 

Hch«>oLe  durridt,  wokl    Uiicbl 


uud  Ui>  noUor  cxtn  i 

and  (av*.M.n...  .,♦  , 
pri 

^vriu  conlesN'Oun  ii 
'Wasdouc  m  iiw  avu: 
occasionaihc  wilii  lit 
ku«^vv  bini  out  vi. 
fuFQurar  and  camplici-  i>l  i*,Ulli&  as  tiiay  wiU 
depone  %|ioney'  great oalht.' and  inaisi  of  ibiiiue 
Md  II*  ?ir  twjiie  or  bard  of  him  JieiA  qr'  ui 
\m  tntLrconjiaoniauf  u  iitui;rhe  M^jtiH  actie  oi 
yi^vV  tjviMie  qaal«;itad  in  thai 

tif"  r.oi'ye,  bouse  aad  the 

eoiiij^vii  -J  .1  I  he  was  to  0]»[ki«s43  the 

Fcbfib!*  Ami  <  I  oi  a«e  boy  lurth  be  a 

privf'i    Lvi.i  V  aiid  qu'by   gaue  Dot 

ad  I  .'ijis  \mau^  yiurq'lk  hv 

my     ._ :t.iir  goiug  lo  titnl  or  eitir 

qnhen  (bay  w«r  a&k>i)i  at  lei«t  my't  Iiaif  oli* 
aVau  the  way  (bay  hciU  and  raised  I  lie  mm* 
ti-ie  It  is  atis*itt  tliat  as  bis  coai^i^ticc  ie»  juKtIie 
excuifrct  (jb  ^^u^iimi  luelutn  4]in  p^esi  et 
debet  cad  ere  in  virum  otuiatatiteiii ;  lii^creV.  de 
ii»  (jui  %if  metusve  cauMi :  Cap.  4.  And  in  Uie 
laiir  ctiamsi  dod  sit  vi^  de  facto,  aec  tiiitiB;, 
timor  eliatD  violentiie  iut'ereiMkis  jtistuiu  iniert 
iueUim,  et  vihub  aniioriun,  «t^i  deleieiia  lis 
nou  viatur.  L.  a,  ff.  de  viaritiata;  Giarba 
COD8.  SB  DUO),  20.  £t  co{tstiUJ«i  trlr  eWj^t 
jfrudenler  luiuus  iDaliim,  a^l  ini^j^iris  uinti  peri- 

culuui  evitaJidum:  €*?%  t  "■  ■ '    n  in  ma* 

triinofiii  coDiractu  inicr  1.4.  lie 

^riticr    roa&uue   U\s    n  a^aitiiiL 

thaiiiebe  way  ofdeid  t^  !c     Be- 

cans  ibe  iimtgmarie  it  di<ii.v 

is  uol  in  law  rtqiiyret  ot  ^ymd  *' 
ure  nol  obleist to  titntit  God  and 
lyves  a-^Ttinst  rcbt-Um  rolvij  vaiv  wur  i;ru«a- 
tiiiauce  ot  advaoiaicr!  qubdk  uas  not  Tonr 
disperaiUc  resolirit  and  lodoublit  men  ri/, 
Alexander  Leith  and  NathaiiiiU  Citirtjoun  w't 
yatr  tua  men  bodin  all  w't  }(wa«rs  aud  pis- 
iutettidlKfin^  loo  Mi'iin^'  for  fuurt?  honest  meu 
w:;  nim  and  unc  fiUiinnit  trew  of  sicr- 

V.  albi'it  Janu-9  OMrdoiin  bad   bene 

Iuk  '      tt  is  tiwt  c<)u*»!ftntilat  be  bmi 

pii\^Ki  ii»  winkthamej/irTifcw*!  bim 

And  bj.i.,,.   : <.jie  mad  lo  expose  tniuselii  Ui 

fmiii/eae  UiG  buto  of  jJiadokttbi  i||atie  LVem  aoe 


timd  b« 
i  I  iKit^  >%**ybiiii  aaa 

1-  ..u^«M< ..^^it^etitbe  ibei 

ii  rey   tti  ibilow  tbaiuiu  %i^lia 

i^ti,  .,  cMf  001   quhat%%"v  ih.iv  ha^i 

La&thi'  q>  «u»  tb«  aanyfio'i  s  ujbtv 

tcinv'funoiis    proci;doV  is  c         ,  ao- 

quiti'UjL;  Jam«'S  Ciordoan  connair  tu  yc  ert- 
fkncre'^  re|}re.s«aUit  be  ii^y  hitd  AdtiiHHii  aad 
vrgtft  frame  biii  a\%in  depoiiitioun  oo^iorisuf  ^'f 
\nUi  Ukay  %iar  obluitft  ti»  bate  jud|f«>d  uotlnag 
boiiig  prcidiioei  to  Yeriti*?  that  be  waa  Ibroii 
aad  ftioaflyfat  and  that  the  durrta  war  i^iooia 
It  ta  :ii  I  n'r^Lr  not  i^o  injioii 

jUil^^L^  n'lrUa.  !>♦    act  TO* 

t  iiitnii  the  KML;li&cbe  U«^ 

1  itifidil  not  lu  ^strict  atid 
*»M  II  iJn-1  ijii^uuiL  uied^il  tte  hmi  lor  b'ia>  do 
fence  be  otiy  fiber  testiiuunie  nor  tlie  kna wr- 
it^ ufane  a«&yse  qr^  vulo  he  was  remitted 
and  quhan  thiy  war  iuclobet  the  in'Shiiionir  of 
tiia  t}r  thre  of  yair  outu^H^r  ud^bt  liaiie  b^Dt 
aiip  gfuid  warranfl  to  the  rest  to  acquit  tiiio  aa  it 
WAS  souie  of  ihame  baveiu^  \«it)i' s-vc-d  toyf 
Tvsi  that  they  knew  pi^obablie  of  ^it  |f 

durris  ivar  scboote   and  tliat  J  1  >  iloM 

wabi  have  reteire<l  himM^lIf  bot  u<^  KUiycd  bf 
ibe  tfchooteii4Sf  of  the  durris  Aim!  idh*-ii  ygir 
te«ii  lUQQie  \T  aa  only  ^  audU  n  ai  1 
of  tbaise  qubo  war  pra^eot  tii 
EDay  bequarrdlit  atKWcil  a»  Jait 
uiilfbt  baif  bene  aue  iiiidicienl  1^ 
1!     "         -  since  tbase  thai  wur  pruw  u*  tj 

1  only  ^viiqi^' and  was 
|*uMt...iui,  iaiawlegebr-^-   '^   ■'■hooy 
of  asMciaUoun   or  1  *niQ^   w, 

n^baUis  and  in  the  Lv.    l^^.^imTuimi 
di(u  tacit   preaumptiofit^iD,  quo:   opomliir 
fiiiii:^  i:»!i?ite   probiiiiiU  traiisectt  in  adiMii 


in  uaifiUBfl 
u  ewet  biic«ip 
iuitur.    Uia^ 

a  47^,  Viquaad 
ie!»tibU!i. 


dKiM'iiifi  probduonitf,  ' 
mniicntmn  Jtid«'  js 
iibiu!!  de  a 


pi<»i);iiiuMu  tiiai.  !«i  wirtKS^'  audi 

tet^liinonio  of  !•<  number  waai 

nicled  with  tbi>  vtkiwiv  ^im*  1   ■      'v  '  rebeUts  1 
scbo<»tein'^  ail  iba  4gc»n:^  liny 

knuwm   to   tinfcm^aelffiii   i.'-v   .m..    |Moceiilel 


M 


157]  upoti  a  Proce$$  (^  Errar^ 

^ftir-nuiiiber  AlUeit  lhayt>e  oibi  iyed  id  law  to 
yu\gc  wUiQiHie  MecHudum  aliefiutioae*  et  protu' 
iiowt  boUi  (lecaus  lUay  nr  wjtneis'  anil  Uecaus 
&lbeit  in  tlii^  caice  uuty  tbe  law  n^iikjji  a  ilb- 
tincuoun  oi*  conscU^ncse  oq  publicl  ixirorfDCt  l>e 
»Ue^atume!»  ami  r^ltivftiit  pr^ili^tion^  as  the 
ik|>u*iliuna  of  tua  witness'  of  a  deld  aud  ane 
vlXu?r  privai  iufurtpet  be  aoc  propper  and  in- 
iBStin^  koavitege  tn  tcriuio  pcctorit  As  quIiHti 
liie  juilj^^e  knowetU  il^t  uiiueBs*  de|M>DL't  and 
the  ctiutiaii-  \&  www  Ju  tiiequhilk  caice  be  is 
t^bleiit  lo  judge  iecundum  cmtscuniium  piM* 
^ftm  ei  alUfiUia  in  auiHbm  ^cveryvies  iu  crt* 
winuitbiii  the  ItMf  is  an  le^tdvr  a^  iiot  ti>  vrgc 
nnyjiid^  U)4klyii«r  u{;;a'Hi^t  yair  c^u^'ieuce 
aecitriduiU  venpoj|)ioiii'«,  m»i  mnt  tiptoiii 
jurM  vt  conresiiMt  tjit-ri  irt  qurdiUitum^*  Ami 
thaii'tbir  Ui<;  i^iuuialbn  delyu/er4i)<.'e  ia  nm^i 
ju#t,  aud  f}roc3c:idis  %pone  aU  posnilUe  aiul  war- 
raatnl^le  |[i;;i-iiridi£  qubiiic  can  be  iiiiaj^ined  in 
anc  caice  of  ilila  uiUire  :fijfi.^l||p Aual Li icitiouo 
of  the  imnt^lis  t^rmi\tmi0fm  fgMk  m  i^L^v^  i« 
lodiviiMbiL'— ibe  |uiiuie(liB  p99ev^^ t ; i m i . t  viwmt^ 
liiti  ;;ni  o»tUe— ibc*  U^tirnouic  of 
Uiiciiber  admifjicled  wiib  yV  au. 
in  the  t^enemll  au«ut  the  fHt^ti^  4if  ye  r*  beiiis 
and  iJj  uocbt  4>nly  omUiMraie  |p  ye  general! 
ipouu^J!^  ^t'Uw  bot  to  ye  decisWses  of  ye  niMSt 
IWutJtis  judicMitfifeiii  and  juritiC4Misi litis  in  the 
Jyk  caice  **  de  reC4fptati£i»e  immt/>rmtC'  .qlk  is 
f roquiaitjie  occurreut  in  Uaiio  Maritf^  Guiarba 
iofitsmea  aoo  tauQe  at},  itMbilk  will  berve  tu 
viwlioat  the  panti<^llis  delyuerauce  frome  bei^g* 
io  Fniu^tjts  is  i^beUit  JSjK^cies  facti  vmii 
Hier.  iiaro  in  area  caropipi  uuimni  trabeus  ctiin 
ux^c  t't  iiUiS  bauuitoruiu  udventu  pcrculbus 
cuui  fuerit  f>biirm4iti*  arcis  Q^Uo,bauniti  lutein m 
liortuiu  itj^r(j«^^i  tiUain  butoni^  cum  nu^ice  da- 
|]ftheiidiuit.  Hart!  abducts  infantis  metu  per 
eoisuB  bunuitosj  uccvi-f^in  jub«^tf  a  qnibus,  rt's- 
tiiuta  liliHt  obuixe  ri><(»iii^  est  vt  eos  qyidatici 
iienuiicio  itonaret  quippe  id  euin  facultatis  a 
prorev;e  abtitiiiiaie  se ce rto  «>ctre  cbcebant*  Ne- 
gautt  baro  bauc  lie  potestateui  A^beri* ;  veriAOi 
iie  ea  re  »e  ad  prorei^tjii  litcras  daturnm  polli 
cetiir :  tuiu  deinde  eus  bref  i  ciuiia  reiiectoii  di- 
iitiiiit,  Cmu  in  qticfttione  crimlnisa  tisoo  Vi)raiu.<i 
^ssfjl,  conversation  is  ni  milium  cum  baDniti^  iaita^ 
el  auikiUi  iis^  prf^ttti,  pro  eu  Rrguit  jurkci^DfluU 
lug  tp lull  all«>oiiiiofitiu  tiavlica  cum  furaaticiiL* 
contarsa^)  d^^tuin  non  indicat,  cum  ni^i 
4imnit  tuoplex  etacciditfiUilia  conTersatio  mere- 
atnr  peuiiii,  oec  csdtsm  »it  ratio  que  iu  teceo- 
latiniie  favore  vci  aiuaiii;.  St^aiindo,  recspiatio, 
quoi  doktta  ei  vd  oittluia  fiaann  aoq  est ;  f jcnam 
von  ipenilur«(qiioiltt«l£iiil4aiiititieris  tostitnoriis 
let  vfif  iiig  (vripnaii  *  auikat  el  prwiumat'  qg^ ftop 
^nupt.  dolum  ^  tJt-€ilelinc|uenlem  ai>socia^epcr 
li•dtbctlUll  iMvUi^i  :id  luaUiQi  sit;  proindedig^- 
lMSfitllaudet|«iiiuali  vitcuidi  causa  banniiDui  rc- 
OBiftati  pix>ciitioa  oTimqiie  qtiicquid  probibctur 
oon  prQptercei>edad  eviiandiuiituahmi  uoaiUa- 
qucat  traoagrefliionctfQ  ad  iJlius  penam,i^i  finis 
iliiusDon  violalur  TertioquibaoDitoseoacle  re- 
ocptat  punieiidus  non  est&iexpellereeotinan  po- 
liutfdKK|U£iiui  penculosquod^innliter  contirinat 
llMUmotiis,  cum  uec  teacaliir  fkiiii(»  ced^se  el 


A«D.  168K  USB 

illic  eotfi  reiinquere ;  cjuod  astruit  testlcnooiia  e(  \ 
duraute  filiuc  cartjeratiane  :  omn'  ,  r   - 

Hioneia  presumuntuTt  et  justiw  <  ^ 

hi  iiborubi  per^ona^  iicc  lis  de  lacu*  rM.t:  tu-i^ti, 
sed  miuit  sufticiunt  »t  cuacte  rcceplet,  Tiuvpf 
nimiruin  viakruiit!  in fcrendtv  infer t  iii^lmn  mer 
LuiHt  qtiiu  aroiurnni  vii»usjimuni  ujlcrt  inic^u^ti"< 
ti  si  defcreiui  ii!»U(m  vtatui'  et  paria  »uut  coacte 
acta  a^it  tiiiiore  Ciiactliinis.     Bald.  L.  ttovissf^ 
tr.  qiickl  MiHi  tnture.     ^Iks  gryndls  quadr^tti^.  J 
uppusitelic  iu  yc  present  caice  and   tuore  preg* 
najitlie  becauii  tbe  cr^tne  of  intjprcomiuouiu^J 
in  ifot  so  gi'cat  as  the  cry  me  of  recept  q^lk  ^  ] 
probibeit  in  ye  comuiin  law  and  iu  tbc  cuic9  i 
rdatcd   tU^ir  >va!>  {ine  voluutm*  act  in  ^eiidtii^ 
fur  ibe  rebelJls  and  intertt*nein^  and  ^uppbeiuif>  j 
of  tliucDc  qiiHuir  u^  in  the  pvej»ent  caice   ibair 
CU1I  be  nQtltii^^  qualllcid  bot  tiurpryi>c  and  iia 
tbt^  former  caice  tTatberlie  tetidei-nes  is  not  s#'J 
ij|)pr(^s$iu£^  C*  tbc  feirfoi"  ane  maiiK  uvvio  lyic, 

it  it»  al6o  fardel"  alledtfil  be  Mr.  Jam- '^  m<".  -1 
Uiat  a«ing  tbe  pannell  did  convict  J  i 
iliinn  of  Sbinobter  qubilk  is  auc  h<  i  • 

iiKerconirooniniT    And  y'i  * 

)i*kiy  to  tuk  bif*  lyfc,  ite;t[,  ,      ^ 

suuH*t  itat  wdfallieaiid  jq  coninopt  of  bi9' 
aia'Lie  tbir  geniibnen  wald  baif  claoj^et  iiiiH^  J 
of  inlercomn^unintf  q'lk  i&  &  ^^  cry  me  uqc  , 
sluuchttT  girtbcyTmct  not  bene  rewled  vviihib#  | 
liebt  of  y^^  awiu  cotisicieuces  and  vpouc  tiulB-r  . 
ciept  inibrmQlious  of  UU  inuocencie.  Qnbiik  ! 
iiitorTi);il:iuiin  h  tbat  tbe  bail!  asby^c  at  ye  ie^^f  j 
th*'  iffittest  pairt  y'of  war  inform  et  be  ii^bert 
(     "  V       '  '  i^ordwun  Jindl||# ! 

« •  1 1  and  be  R^oberl  j 

Jii'iiijjHRr  <i!  *  uHLiiui^:  uc  jtMiiLit  Forbes  Jln"Q* 

tbcr  to  ye  pei-h^^wp  of  AueliUnh^  be CoI« 

\ ieso u e  bn rg-t  s  o f  A  In r^  1  >  '   *  m  =  1  I  Hi  ce rtanc  ? tber 
y:ciit«linciiquha  >v;u  <  ;  t  (Jolkfi*i  lum^i 

llie  ty  me  of  the  ranr.^   i  ad  bcing^  ail  got ' 

ing*  to  supper  at  uvf^  bouriv  at  6?ia  in  m 
itormie  wynlernyU  tie  r^sbelliti  beiwg"  airu^iil  ' 
men  boddui  feir  of  weir  with   bagbuttis  pLato<T 
JetUji  and  bit^laui)  durkis  and  all  vtber  \vappou«if 
iava&iue    ^terit  tbe  ho|i$e  and  tmmediallM 
eftii-  yair£Atrie  scbote  ike  durris  sa  that  y  V  J 
was  MatJ»er  e^ess  iivr  ii»gvess     And  in  taikMl 
y'«i*  ane  aerfaiid  *d'  Bobf  1 1  Celleis  being  witb- 
out  v^tm  not  ^uilet'it  to  enter  ye  bouse  ibat  ^ 
Di^kli    Natber  fva&  yair  onv  et  llobert  Collin 
Jm  v^rvnndid  ^offerit  so  epqmII  ^  ^^  goe  out 
tityJ  mi^te  yn>r  s^uidis     Bol  t>e  ye  contrair  tbe 
l^id*^  Ti^'i-     n  »i"   r  f-^'  f"..'    ^  i- 1."  v%i|fuU  Ui- 
IwcHu  l^t  only  i«  ] 

ibi$  pi  i,-v,u.     .....  ..  .     ^     i- -,  tbat.ny 

l^tfd  Aduncat  <Ud  fudicialtie  accuse  iUe>iBiiJ 
Jaii^e!^  (fordcHin  Ikii^j  ilian  ^mi  ve  pannell  KfMmtel 
,tbe,p>  t  all  ibut  I  buif*] 

now  ,  tne  his  ^lva^u 

I  ut'o'i  kbui  be  v%aJd  bt^il'  l»eoe  i 

k    khe  reb<'llis  t^emg*  tbat  he  couid  ] 

41oU>>u  oiit  (thay  being, mai^terriid  of  ve  durrts)  1 
ibnlJiie  $taw  quveilie  to  bis  b^ii  and  knew  not  j 
qobati  liie  reUiUi^  hy  doun  nor  qttbaa  thum  \ 
went  a M", ay  in  ye  muirnini;' qubilk  ifaga||nti 


v 


1S5] 


35  CHARUBS  II.     ProceedingM agaimi Akx. Blairand othen,     [IM 


be  presumet  voles  be  had  dislykit  the  com* 
name   and    estranget  hiniselff  frome  tbame 
Item  the  lying  id   one  chalmer   w't  rebellis 
argiies  not  so  much  internes  and  famiiiaritie 
w*t  lliame  as  the  straitues  of  rovi  mes  knawin 
to  ye  assysoVs  Item  bis  nieitintif  can  not  lie 
•g^ra^attit  from  the  place  au  suspect  to  be 
harbour  of  rebellis  becaiis  it  was  nocht  rcpre- 
sent'id  to  the  uannelh's  rliut  yc  house  of  Hassie- 
walbM  was  :nc  a  plau:  juul  it  not  b&n\^  knawin 
to  tiiameseltiis  thay  could  not  haif  had  any 
ground    of  ,presum|>iioHn  i'rorao  it    Chieflie 
Being  the  pannel  depunet  vpon  his  grit  outhe 
thar  he  knew  not  q'r  the  rebellis  war  recept 
And  coQs«*4Ucntlie  Uiat  the  bouse  of  Hassie- 
vallis  was  notane  boose  qr*  thav  uiet  to  be  har- 
bourct     Nathercaii  theuanneliis&igitiousues 
and  hi-«  not  tor  corresfionUencc  witli  tlie  rebellis 
and  fa\ouriiit|r  of  tliame  he  now-vr^^et  as  ane 
pre.^umutloull  oi  hys  awin  guilt  beeaus  thair 
was  luitninrr  jnuvin  to  the  first  assyse'  hot  his 
awin  coutesNiouu  that  he  had  slane  a  man  (q*lk 
was  done  in  his  awin  defence)  and  that  he  mett 
oocasionalUc  with  the  rebellis  And  tlie  assy so'rs 
knew  him    not  vtherwayis   brandit    as    ane 
favourar  and  complicv:  of  lebcllis  as  thay  will 
depotie  vponey'  great  oathe  and  maisi  of  thaioe 
iiad  uevir  senc  or  hard  of  him    IteiA  qr'  as 
his  inti^rcomiiioning  wittiiicrlie  a{(;ainH  actis  ot 
narliaiiieij;  is  |>irt>siiiuptivelie  quhleieid  in  that 
tie  joy  11  eil  not  w't  thaise  of  y e   house  and  the 
conip;iuie  w't  quhome  he  was  to  op^Kise  the 
rebellis  And  convoy  it  not  ane  boy  furth  be  a 
privat   way  or  window  and  (|u*by  gaue  not 
aduerteisiiient  of  ve  rebellis  being  yuir  q'lk  he 
my  H  haif  done  befoir  thair  going  to  bed  or  eftir 
quhen  thay  war  asleip  at  leist  my*t  haif  ob- 
ftVuct  the  way  thay  went  and  raised  the  ciin- 
trie  It  is  ans*rit  that  as  his  conference  is  justlie 
excuivct      Ob  Justum  metum  qui  potest  et 
debet  cadere  in  virum  constanteni :  Decret.  de 
iis  qui  vi,  metusve  causa  :  Cap.  4.  And  in  the 
law   etiamsi  uon  sit  vib  de  facto,  nee  minie, 
timer  etiam  violentiee  iufereudui  Justum  iniert 
inelum,  et  visus  annorum,  etsi  deferens   iis 
nou  vtatur.     L.  S,   if.  de  vi  arinata :  Giarba 
cons.  2B  num.    20.     £t  constans    vir   elegit 
pru(ler.tt;r  iniuus  malum,  ad  majoris  inaU  peri- 
culuni  e\  itandum :  Covaruvius  dcmetu  in  ma- 
trimuuii  cootrac^tu  intervcnieiite  :  Num.  4.  Be 
<Xrittcr    reasuiie   his    not    atlemplintr   against 
thauu'  bs  way  of  deid  is  moir  excuseable    Be- 
eaus (lie  iiua{;uiarin  n^solutenes  of  the  dittay 
is  noi  in  law  it quyret  of  giiiil  subjectis  qiiho 
me  not  obleist  to  tempt  God  and  laveiwh  yair 
lyvcs  a«.;iLinst  rcbt-ll.s  voles  vair  war  grit  us- 
siiiauce  of  advantage  quhilk   was  not    Four 
disperallip  resolvet   and    ledoubiit    men    viz. 
Alexander  Leith  and  Natlinnitll  Gordoun  w't 
yair  tua  men  bodin   all  w*t  gwnes  and  pis- 
tolcttis  huiti'T  Loo  htronc^  f(»r  foure  honest  meu 
wantii.g  til  ami!  aud  ane  vnairinit  crew  of  ser- 
vandi*!   Ai;<l  albeit  Jaim»  Gordoun  had  beoc 
fuii-laulic-biouie,  itis  nut  cnu^tant  tl  at  he  had 
power  o:  ilie  le^t  to  maklhamej;.'^»Mew't  him 
And  soiild  lihTbene  inail  to  expose  himselli'to 
baif  beue  the  butc  of  pislokttis  iijione  Item  ane 


boy  over  quhome  James  Gordoun  bad  _ 
anil  quhome  he  micht  haif  sent  furth  at  i 
window  or  privat  way  whence  he  micht  baif 
sent  him  the  rebellis  loadvertaooe  and  cauiea 
securitic  ar  iraprolmbtie  sopposet  it  nocht  boi^g . 
con  sunt  that  yair  was  any  way  or  window  sua 
law  that  ane  boy  my't  naue  bene  let  doun  or 
that  thair  was  ony  boy  quhome  James  Govdouo 
m^  cht  have  sent  Anil  it  nocht  being  presume- 
able  that  the  rebellis  who  hafl  so  great  rcasoua 
to  be  apprehensive  and  quho  for  yair  awan 
s<u:uritii}  vset  to  schoote  durris,  woki  nocht 
advert  that  yair  was  no  privat  way  or  uiadov 
qr*by  thay  micht  haue  bene  surpryset  and  be 
could  not  haif  observet  the  rebelhs  wayiain  aiitf 
dark  inoimiug,  thay  haitiug  gone  away  befinr 
he  uas  awarris  and  conseqiientlie  tberaiaeiiig 
of  the  cuntrey  to  follow  thaime  was  noidloa 
seuig  he  knew  not  qiihat  way  thay  had  takia 
LasSie  qV  as  the  assyso'n  y'y  vuwarraiilaUa 
temerarious   procedoV  is  exaggerat  fibr    ao- 
quitting  James  Gordoun  contrair  to  ye  efi- 
dences  rpprescntit  be  my  lord  Aduocat  and 
vrget  frome  bis  awin  depositioun  conforoae  9'c 
vnto  thay  war  obleist  to  have  judged  noshiyg 
being  produoet  to  veriiie  that  he  was  forctt 
and  neot's&itat  and  that  the  durris  war  acbooCa 
It  is  answerit  that  assy  so*  rs  ar  not  tK>  mucji 
judges  as  witness'  Jaco.  6,  parlia.  6»  act  ?0, 
ci  puisim  in  our  law  and  in  the  Kngliscbe  law 
Aud  y'ioir  the  pannel  iieidit  not  to  aatrict  and 
ver.lid  the  qualitie  alledgit  be  him  for  bis  de- 
fence be  ony  vther  testimouie  nor  the  knaw* 
lege  of  ane  assyse  qr'  vnto  he  was  remitted 
and  quhan  thay  war  incloset  the  testimonie  of 
tua  or  thre  of  yair  numlier  might  haue  bene 
aup  guid  warrand  to  the  rest  to  acquit  him  as  il 
was  some  of  thame  haveing  witnessed  to  ye 
rest  that  they  knew  probablie  of  thase  that  ye 
durris  war  schoote  and  that  James  Gordoun 
wald  have  rcteired  himselH*  hot  was  stayed  be 
the  schootinug  of  the  durris  And  albeit  yair 
testimonie  was  only  de  audUu  and  of  the  repoiit 
of  thaise  quho  war  prsseut  thameseltiis  and 
may  bcquarrellit  alsweil  as  James  Gonloun  it 
might  haif  bene  ane  sudicient  inlbrmatioun  to 
the  assyse  since  thase  that  war  present  thame^ 
siitiis  could  only  witncs'  and  was  nott  to  thw*' 
panoellis  knawl^e  brandit  with  ony  suspilioqa 
of  associalioun  or  intercommonio^  with  the 
rebellis  and  in  the  law  Testimotiiimi  de  au- 
dilu  iiicit   presumptionem,  quie   operator    lit 
onus  plene  probandi  transeat  in  aduersariwn, 
et  si  deuide  aiiquod  adniiniculum  acoestent 
plena  resultst  prooati'>,  prircipuo  in  iis  quie  sunt 
ilitfioilis  prubationis,  quaiu  uutem  esset  hoc  ad- 
miiiiculum  Judicis  Arbitrio  reliquitur.    Mineii 
chius  de  arbitrariisJudiciis,  casu475,  vaquead 
num.  V2,  et  omnes  doctores  de  testihus.     And 
y  Yuir  spring  assyso'rs  ar  not  tyed  preceialieto 
the  strict  rculis  of  probaiioun    Beeaus  yai  -ar 
probatioun  thameseltiis  and  witness'  and  Ah0 
testimonie  of  some  of  yair  number  was  irhwi- 
nicled  with  the  vsuule  practize  of  ye  reb^Ua  ip 
schooteing  all  the  d<M>re8  qubair  thay  < 
knawin   to  thameselffis  thay  haif 
wanantabUc  .vpone  the  tcsliuooie  pf  j 


upon  a  Prucnt  af  Error i 

inl^rcomtnonct  wiib  tiie  rcljflliii  at  tua  s^ucrmlt 

tytiies  b^  bis  it  win  confessbun  did  nalher  gcve 

ftigne  of    EiriscaDl£tilaieat  the  t>me    of   Im 

eumiagf  nor  made  ony  wairaeiiit;  to  his  lua'ties 

Id^es      And    zlt  tins  James   Gordoun  quhm 

waapnunellit^ith  fmrenianent  iuLlovvis  Vfione 

the  tbtirt  of  August    and  contioewit  lo    the 

morne  All   the  rest  were  convict  and    fyltt, 

tnd  this  Jamefi  Gordoun  was  be  tUe  iiaroe  as- 

ivs«  (f|idia  in>ijvictit  all  ye  rest)  clangtt  For 

the  *iu]iilk  the  cotinsall  did  oirdanc  the  assyue 

Vt  he  perse wii  to  the  efiect  be  y'r   puneiisch- 

lut ht  or  terror  hiH  maicstms  subieclL<?  sould  not 

presume  to  jntercoinmoun  with  the  rebellis 

1  pone  exp€ctatioun  of  the  1)  k  ifupunitie    As 

J  a  nie^  Gordoun  fund  !i€  tlie  temeraiious  pro- 

reidjDg  Qf   the  said  assysc  and  quhuir  it  is 

ailedget  tbnl  the  said  James  Gordoun  his  io- 

tercommoning  i^ith  the  rebeUis  was  not  spon- 

taneus  hot  foi'cet  in  respect  of  ye  schuitting 

of  ye  durris  he  the  rebellin     It  is  nnsVit  fir^t 

That  this  w  as  proponet  in  the  firfct  proces  and 

•  rcpdlit  Secuudo  thiB  elyddis  not  the  first  inter- 

commoningat  his  awiii  houst-  in  KnokleUhe 

'  quhilk  per  $e  was  sufficient  to  infer  his  fnttT- 

comnvoning  wiitinglie  with  the  reheilis,  thair 

bein^;:  na  sic  ailed g^ca nee  of  force  of  ^chuititig- 

of  the  dut:^i*  at  the  first  tyrae     Tt^rtio  the 

farnvn  h  ^^trair  to  James  Gordoun  his  asiln 

f\ev<  hainthe  sctondinterroramoninn; 

i    in  i  Us  grantiB    his  conlijri'nce  witli 

I     the  rtklliij  his  soupping  with  the  rehellis  his 

I     lyine^  in  ane  chalmer  with  the  rebelfis  hot 

1^    D«ver  tk  word  of  "his  coaciioun  or  schooling  of 

[    ye  durris  in  all  the  deposit ioun  and  the  assyse 

?    VfikT  bund  to  eo^osce  accolTding  to  bis  aw  in 

t,    confestioun  produce!  and  Tsct  agauist  him  be 

bis  maiesteis  aduocat  spectallie  seeing*  ye  said 

schuiting'   of  durris  was  proponet  and  repellit 

I     be  the  judpfe    And  quhair  it  is  allcd^ei  that  the 

I     assyse  hes  liliertie  to  judge  accoinJing  to  thair 

«:onscience  And  that  some  of  yV  awin  namber 

I     did  atlcBt  to  thame  that  thay  did  heir  be  ye 

repoirt  of  thaise  that  war  tn  the  hotise  that  tne 

I     rebeHis  did  schoote  the  durris     It  is  answeirit 

i    that  albeit  qV    na  probatioun  is    the  assyse 

'    may  judge  accoirding  to  their  pnvat    con- 

L*dejiccs»  zit  quhair  probationes  ar  vset  to  the 

■M|yse  in  judgement    Thay  ar  tyeil  to  judge 

HBiDirdiiig  to  the  probatioun  led  and  producet 

^in  judgement  andean  pot  judge  against  the 

ajmyu  vpone  pretence  of  privai  knaw!edge  or 

ioonBcieiice  ffor  that  war  to  destroy  all  justice 
■yofiiUe    8eeing  be  the  I  a  wis  and  adrg  of  par- 
Immcnt   all    probatioun  in    criminal    canss^ 
i      is  or  dan  it  to  be  vset  opponlie  ^nrl  in  fac«  of 
judgement  and  the  privat  knawkdge  cpihilk 
!     they  allcdgje  to  haif  had  be  the  depositioun  of 
!     some  of  yair  number  can  be  no  excuse  iQ  ihatne 
;     first    Becaus  it  is  ^raotit  that  they  deiK>nit  only 
I     «r  (tufiiia  et  non  f  j-  risu     Nixt  becaus  the»s 
'     4]tiha  defionet  ti  nuditu  declairet  yat  they  hard 
the  samyu    fronie  Kobc^rt    Colhe   quba  was 
maister  of   the    Inne^j    Hnb^^rt   Dempster   o4* 
Cuschnie  and    Hobett   Forbes  brolbtr  to  ye 
persone  of  Anchterles  and  fra  Robert  Colliesone 
i^urg^rs  of  AWrdene  und  certain  Tthcr  gentiU 


A.0.  l681.  in% 

men  i|uha  war  in  Robert  Colfies  house  the  ly  m« 
of  the  rebellis  incuming  qr*iipooe  bis  ina'tei^ 
ailuoeal  takis  instrumentis  and  ansVis  that  Uie 
tlecla  rationed  of  ye  said  is  peraones  being  lub 
todan  renin  be  intercom muning  with  r^ielli* 
could  not  be  ane  wammd  to  the  assyse  to 
clang e  James  Gordoun  As  it  could  nocht  be 
ane  warrand  to  clange  thaq|CSclfliB  gif  they  ^ 
hade  bene  pann«lllt  spcdijpptipg  tlie  said 
house  of  Tlasfsiewallis  q^rof  IfliVtd  Uobeft 
Collie  wQs  maister  was  ane  verrie  suspect 
place  the  samyn  being  grantit  be  the  deposi- 
tioun  to  liane  bene  vnderuie  raarqueis  of  Hunt- 
lie  within  i|uba is  boundis  tlie  rebellis  presumit 
to  find  fauor  Lyk  as  the  said  Rob  it  Collie 
maister  of  the  bouse  and  Robert  Dempster  fra ' 
qubomeit  is  deponent  thay  hard  the  said  at- 
testation n  war  both  denuncet  with  the  said 
James  Gordoun  rebellis  at  the  instance  of  ye 
laird  of  Frendrancht  for  not  compcirancebeloir 
the  justice  to  vnderly  the  law'  for  soirning  and 
opprcssioun  committit  vpone  his  tenentes quhilk 
the  said  assyse  could  nochi  misknaw  thav 
being  denuncet  robelii(»  be  the  same  IVez  of 
hoiming  quhilk  was  j>roducel  to  teriHe  thai 
Nathaniell  Gordoun  and  Alexander  Leith  war 
denuncet  rebellis  And  farder  the  h&n\  James  « 
Gordoun  snd  all  the  remanent  geotletncn 
being  in  the  Innes  at  that  tyme  war  altogidder 
inexcusiible  because  it  is  granlit  that  they  war 
to  ye  number  of  fy^^  gentlemen  nominutim. 
by  Vther  geiititmen  qutui  war  in  the  housse  and 
double  number  to  ye  rebellis  And  sua  soulU 
haif  concurrit  togider  for  rcFerence  and  obe-  ' 
dicnce  to  his  ma*teis  kwis  aitber  to  haveappre- 
hendit  the  rebeJlb  or  to  baue  made  warneing  to 
the  cuntrey  to  apprehend  thame  The  place  of 
HassiewaUis  bemg  within  the  parochin  of 
Aucbterles  quhilk  is  ane  inland  pairt  of  ther 
cuntrey  and  populus,  and  ane  number  of  gen- 
tlemen within  the  samyn  quha  aucht  and- 
sould  haif  concnrrit  with  thame  for  that  effect 
jyk  as  bis  ma'esteis  aduocat  acceptis  that  p^rt 
of  the  alledgeance  quhilk  beiris  that  a  servand 
of  Robert  Colleis  being  without  was  nocbt 
sufterit  to  enter  within  the  house  that  ny't 
quba  beinif  fric  of  ony  violence  roy't  bane 
bene  dircctit  ayer  be  Robert  Collie  maister  of 
the  house  or  be  James  Gordoun  or  ooy  ane 
of  the  rest  of  the  genttll  men  to  haif  maid 
waiming  to  the  cuntrey  Lyk  as  tlie 
said  James  Gordoun  and  all  the  rest  of 
the  gcntillmen  being  w*tin  ye  innes  that 
ny't  ar  altogidder  m excusable  because  al- 
beit they  pretendit  the  schuiting  of  tha 
durris  zit  efter  the  rebellis  went  «o  bed  in 
ane  seue-rall  chalmeri  thay  war  obi  cist  to  tsc 
exact  diligence  cc»n forme  to  the  act  of  par- 
liament Ik  some  meains  or  vy  Vtn  hulf  ceasezed 
irpone  thair  airmoV  quban  they  war  sleiping 
or  to  haif  ramforced  the  cb aimer  durr  with- 
out till  the  countrey  fsould  haif  beine  ad« 
verteised  at  the  \cht  sould  haif  waimet  the 
cuntrey  in  the  moirning  quban  they  went  frirth 
bol  nane  of  tliir  was  done  And  qV  as  they 
pretend  Tiolenee  thay  can  not  be  hard  *  Quo* 
*  oiam  nuJluni  fuic  lignusi   resisteticie'  and.* 


14S] 


38  *C M ARLBS  11 .     Proceedings  a^ainai  Ahx.  Bhirand  othcn,     { 1 44 


0f  ttie  Jaw  *  Mctu«  nwi  e3rt?u»at  niai  mefiif 
'  sit  jostoimus,  noi  ettitn  probnndu!i  est/ 
Aod  ill  the  crtmitialtfts  tmtdes  ^*  quod  conctiio 
«tiftm  prubula  nmi  oxctisnt  niii  slatifii  pofet- 
<]iiani  qiiifl  liberiilii*  «st  t»  vi  coAeliVa  denuri- 
cmvcrif*  An  U  hn^netWxe  c<mdu*Ut  be  Fario 
qiit  '  r.3J*,   39.    -10,  ntifi  4t 

«Ai*  r'i  na  moir  pnnlr>neutile 

Hor  '      ^'1*       \iQ^  uf 

ib^r  :ir*reof 

tflt^%CJT      «fl       |r  iriJi-v      •■• kjHtlilk       out 

of  ifiicfstiouri  yak  will  nntl  uf  ane 

tift^>  f.t,fl  .li^^!  Am!   7\t   <urhc  as   i« 

pi  J  2iDd  a(!lis  uf 

p'h  I  iL  ^   of   all  tf>ir 

pretcnccfl  JamcB  Oontonn  wns  tnnist  t^iiltie 
add  ecrald  net  hatie  bene  clatig^t  be  lb<'  satd 
a«T$e  Nuther  uf  his  tirst  iuteirunmjonin^ 
agailist  ye  ijohilk  yalr  in  nathing'  alled^t  bt* 
iwahl  i^'foirknawled^e  q*]k  can  uocht  ^cuise 
liim  of  the  law  qnhilk  only  ref(nir«j  knaw* 
hi]'  r*  vR  seciftid  inter- 

eiiL  vvitliin  ane  niyl« 

to  I  ■:-■,■.:-],  lU<? 

•ftrr  <;r  rnairl  ni  takirt  of  resistance 

bot  idl  u^i^..  .  -  L  wi!lin|;^i{?«  fatniliaritie  ami 
.  ttfectionn  and  mnin\  na  intematioun  or  vndr- 
9ien\r  t(i  the  coaatn^y  and  Iveing  a  pcrsmte 
aitspectcd  and  cakin  he  the  marqueis  comniU- 
tjoun  »8 suspect iMM  nocht  haTcbene  clanget 
^f  mtercomraoninjsf  qlk  he  himseW  cotifesait 
with  all  the  cpinliteie  and  circtira '-lances  aftnr- 
Wd  And  {Tit  the  wilfiiH  and  tememrinns  pro- 
Aiding  ctf  ^le  aaayse  in  clangeing'  of  him  be 
tmi  pnnenfched  lit  alloi^ed  and  appnyvio  it 
Willimpo^rta  heaviepreparatire  to  the  tirein- 
dice  df  ye  ptibhct  p€ac«  and  to  hh  Imdett^rs 
amtnjfiue  and  oah'eie  with  it  a  prfK^lamtttioun 
6f  a  fieirftdl  lit»ertie  to  all  his  nm'l^ts  subiectit 
to  fmenvQinniotlin  ^iih  oppm  rcMIes  in  the 
Bfligt  ^blicit  rebelliouD  qMk  eYetierad  aqbiect 
imild  Mktt  and  dt^taist  m  re^piSt  iv'«f  aU 
ilf»  itidif  fllMireinces  cucht  to  be  t^lH  aad 
Htm  dMgr  ItMd  r«leirant  and  proven  Le  the 
Wflll  (iMtucei^ttd  yeaamjii  dtttay  reft^rrit  to 
Die  kiKWl^dg^  df  tivenlib  |lersoric«  accoirdhii^ 
to  ye  a^  of  pariiainefit  And  that  allanerlie  ana 
Ikr  IB  iii«  mmkytt  o«n]»iatia  inf^cto  quhilk  is  this 
duly  poytil?]^.  Ttm  the  ^  rttih  y'  probatioun 
iiledgfd  in  ye  dfU^  to  half  bane  proriucet  in 
the  first  proces  for  verifiootmuii  of  that  dittsy 
a^inst  Jamca  QtmliilD  was  dr  J  net  a  prodiiast 
at  thift  i>  iw  agfthls  ym\  for  that  effect* 
Tii#  >o^ioe  evMAewia  thia  dyet  to  ¥M^J 
iMnir  t)ie]c?ui  of  DflDember 


cHinft  the  [If rtooes  an  pamidl  la  ifid  wm*- 
kmn  fcr  y>  re^trioy^  aaiM  Iff  iday  of  Dtt* 


mat  j\ 


etmiher  imtant  rik  mfmmw 
•he  tliou!iand  tnmia  For  «ibf«fi€im  ^t'iif 
iSdfitptiint  James  Ch^ne  of  Aniad|^  mad  }m- 
«tfti«  catftioiin  fnr  ye  htirdsa  of  Lf^ntork  Birkin* 
W^f  Pctt<'m«:if  Mr.  Mnffjn^  Inniif!T*den  tbe 
pVfd    Itiaii    <'  f(k<i    erf 

Elstk  and  h.  ^ywtttc 


GeOTBfc  (iJordtnin  of  Netrti 

O^JItie    of   lilas&iche    V*^  i 

AWxiMitXer  Keith  wf  l>il4Fii«  and  ih«?  ^ 

under   Kc'ith  of    Dufltitc  betvime  eh^ 

yeeulri^  of  yc  aaid  John  Os^ilvie  ui»«l    lujll 

remanent  paiwiftea  vpon  paniicU  t  nder  ye  jkum: 

fo'rrsQifl* 

The  ppnsonea  of  aaayse  wamat  apud  acta 
ilk  |»c'P0One  vndar  the  pabe  uf  ana  tlioaaaaid 
pundts. 


ClRU 

prf'fi 


D.  N. 


Iteipa  tents  ia 
*^tnbrr»  1635  [•er 
uW  et  Jiicobimi 
iifatos. 


Uiran' 


Amjw'^t^  acxmael  «f  ErroV  ContitMnrit  tA  y a 
MorHethe  IQlfistanto. 

AUtamhr  Irwing^  of  Letitfirk. 
Alcjrander  Buneruwn  f^^*  Kkirk* 
AUxundtr  Abercr<fi  i  i  kiaU«ig« 

(jcttr^c  Ggrdonn,  ot   ^  u. 

TT7//d«ie  Sattoun^  of  ScheathyD. 
Ororge  Gordotin^  of  TuUiecho^vdiew 
itiArt  Ogilvie,  of  Glassache. 
Jiimet  Scatonfy  burges  of  Aberdeen* 
Chnrl^t  Steven  Lixter,  hurges  y\^ 
AtcTfiniierKcUhyoT  Duffus. 
JIfr.    MaUto:o  Luuwiiiden  buries  of  , 

deen,  ^ 

Hector  Ahcrcrumhit  of  Fctter-neir. 

Dilatiit  of  ye  error  oomniittit  be  thaiiH;  id 
temerariua  acqutttitijt  of  James  Gor^miti 
to  Ooorge  fTordocin  of  liOgyaltonfl  in 

5pe*itio  ycdittay. 

PcneicQr,-^\T  Thomas  Hope  of  Ci 
knight  barrouathis  MaVis  ^^li^^^cat 

Preio^n  in  tkfenrti.'^  Mr.  iames  Bairrf — Mr. 
ThofiBos  Nicoltoae  ytmnfor^^^Mr  John  N  r«het. 

The    panndlis    takis    mstrunAtHtis    u^ 
Hfttrie  and  jf'lesiis  for  y  V  cautioneris  relicC 

Itisdnplytthe  Mr.  John  Nisbet  »  prola> 
fifT  ye  mnineU^tlie  reply  maid  be  hk  piaias^ 
ti««  adiioGat  lit  the  last  dyet  of  jis  proeet 
Tlcgtya  Aitt«yis  tiatker  rdevMit  ritw  piori* 
ttnTm  re^mmm  Mredi^  AtMueet  Atid  i|*r  ii  is 
replyrt  be  my  lord  atbocac  tJict  maibing  is  la 
be  rvmitttil  t*  ye  a^f'ora  bot  cnty  to  cag^ 
tinsea  dll/^fo  <|oKidd(^  ^if  ^iicti  wrhtis  ail4 
nratotioim  xrwt  ^bai^m  to  ilie  6rsl  insym  ll 
bdsplyH  that  Hie  Aetmetng  of  vg  estttttlf  in 
Hqmmng  t«i  ninvrofis  and  noMe  uuBwmfrym 
h  ooot tb^  flMnr  io«M  *mW  eogsoiii  «r  iW 
i|*ik  h Tndenyable  «tid  is  oWiniia  m^  }txlB«>^ 
br  wKy  fam  B«rt  tlait  lb  ay  aonld  try  <fii1]i<mr 
llbedrfdiaitfiaiMooat  fa  tbe  irst  aaVr-^  v-  ^f 
Ibii  cNwiH  ta  ypona  tbame  matttlt  t 
Inanrfwti^  of  *n  minr»f>ll  hu  irtiMt  <p.. 
ofeiuis'  ^ofie  ta 

rict  »i      .  it  uh^^umi 

and  r|ii^hi< 
thf  kiranki 
pfT99ifteg  gift  paouaU  ait  'ii€<)iui  Wuit^turi 


>* 


mpon  a  ProeM  cf  Error* 


A.  D.  1 


[1« 


mlftilliebefaiiorftnd  purtmll  mcatics  For 
iJUbeik  vpone  the  smme  evidences  sctiawin  to 
ibe  fir«t  BM^ff?  It  sMkl  be  fnml  lliat  ttiey  Hni^' 
•isquilati   *  it  tliey  finil  tlmt 

tbiiy  hail  iie  ami  tetncrari- 

if  Mnt  poantobct  lie  ihe  lun  ni 

gif  ttisy  beperswai ' '  *'    '   i!«ey  Imu  n.»:  f.  us- 

noerntlie    and    «c^  ynir  conscience 

aii  itiy  lord  aclni>c.  *^s  af'kiK»'Al^*!i;^f  f 

For  gif  tlmysoiih)  ^  mi 

excuse  ii  ^^^  i'/tHu 

nochtco 

vpoaetlt 

excuisei 

ol^  tile  u* 


slrnvne 


re  ot    tern 

r  l»u  the 

iiuatinqr  tl«al  iIk- 
gniBtof  igouraui  en  or  h  Doclit  yc  j^rmrjt  oC 
tm^oryaut  ooil  fault  f>f  ascyaV^  seVingf  aocht- 
wlthstiiuling  the  t'  >  ''y  nxay  Ijc 

|iat    to    Hue   If  fit  irns    purticji 

J^Dling  yV  fault  ar  i«- It  |i lit    :ii   :  ^      v/- 

ted|fe     Ami  qtihalr  as  it  iK  iTplyeii  w 

«Au  I'res  et'  inlerccjrarnoniutr  prtHi"!  ri,-  iiH 
iniii^  witliout  di&tiiKiiotni  qiiliiildfr 
foir  knawlecl^e  or  be  Kiirpryi*e  And 
that  ye  law  reqnyrins^  icimiiam  it  is  imperti- 
ncQt  to  BOperad  pretcujitiam  $ioce  ibir  kuaw- 
ledge  IS  only  probable  be  oath  of  partte  i|uha 
wald  ei$te  rodeftme  thanieseltlis  with  ane 
Otlh  And  be  y*r  impuuitiij  to  incurradge  and 
inlioldfn  ftheris  to  ye  lyk  prartbes  And 
*ft»tr  iUe  justice  repeliet  the  <leience  pro* 

for  James  Grirdoun  that  he  w«s  J*ur- 

fryivd  and  occiuiidfiaihe  a^dg^  ivithout 
foerknowlfd^?  or  trystitia^  It  is  snt'rit  y*to 
thai    '  rlinmetit   i5ti7  is  expres  of 

try.^i  lo  fbrtliie  rtbellis  And  most 

intcrpri'ii  nu-  re:u  of  the  aetis  and  Vtez  mmi 
y'lipoiiit  seiog  without  absurditip  thny  con 
tiocht  be  undenitMid  viherwaylg  Aud  scitrttia 
in  sens*  can  not  impnirt  a  cry  me  ivirhout  uiil 
and  ttiC«titioDti  (juhilk  ia  argued  ho  foirknaw* 
ADd  tiocht  be  suq>ryses  of  tbea^^e  rpilio  ar 
|M>wprful]  Ajad  with  quhome  puirteis  nr 
ntat  to  interteyne  discourse  or  ioconsidp* 
ratlae  or  TntihristianJie  to  be  yVawin  TnnrtJur* 
aha  lie  imtalinsr  robellis  and  pri*' 
eiwiadeatit  And  the  impWDitie  f> 
tiocht  KtiA  coiiftitlcrnhle  &s  the  danger  i4^^^ati 
stibieetk  qiiha  may  be  invoWcd  Ue  surprp^oT 
nMlis  Its  thousandia  of  thamc  has  bene  in  \e 
Iftit  disorderis  Atid  yair  is  not  only  heir  Iht^ 
of  fbe  pairtie  acciisft  hot  a  pregnant 
Bptinun  from  the  rclicllis  koawin  prac- 
^lort-T>'---  '-•-"  --».— <is  AndyepanneU 
co[ti<  ihtiv  come  to  him 

5» '^  — -    ,      .  ,!i;it  he  could  noclit 

■>'.'  being  bodm  wiih  pi%toUctUfi 
<  <ntf  it  is  ye  only  ground  of  dit- 
ii|(n«nf)i  bim  iiithout  ouy  vtbc^r  eui* 
lid  nocht  ha  if  lit^ne  tati«  mm  1  la  t  lie 
Ing^  adrainided  with  the  former  pithUiiip^ 
tiouii  And  nJi  cbrimtiaue  juclge  can  candenine 
A  pairtie  <H)fif«'«aiD{^  intfixtiinmonuig^  a^n^ 
ypouc 


CQtildMiouii  Kun  qualifci 
I  flitliklad  m  hia  fay  or  v 
VOL,  XI. 


^nantUc  ad- 
1;  prcsump* 


tiouti  and  his  great  oaihe    And  the  jtirf<r<^  ^n* 
terlocutoV  reprlling  tbe  foirNaid  d»tr  1 

l)C  ohtruidet    Bcvaits  the  justice  b+ 
jiropper  judjje  of  the  rclcv. 
ye  lelevuncio  qi]biddcr  or  n 


ditl^y      albeit   releiaitt  in  lh<* 

ildcr 

s     ■     -    •     ' 

dyttit  of  t-i  fin 

iiilcd^iog'  ti  ia 

his  j«ist  dclenee  and  the  justice  sould  remit  1 
to  ye  knawtcd^e  of  ihe  an^ise  thea^  qualtteis  j 
It  war  absurd  to  think  that  he  had  repeTlii 
thaine  m  irrelevant  in  law  het'an**  Ue  h^a  re- ; 
ferrit  thame  to  Ik;  try  it  br  ti 
And  qV  as  it  ia  reply  it  be  to 
ye  quaUteis  *  wilfullie'  or  *  >nr 
takin  altematiue  confirme  to  t!i  < 

of  the  act  of  parliament  or  vtherv^  jms  i^  imiui** 
imply incr  wUlinghe  Tbe  repetilioun  of  wit-* 
tiiighe  war  ane  0^'="^'  ♦"i»«r.i..<rv>  Vr^.i  tii^t  y« 
act  of  parlia  m  en  t  e  i  ti 

dilaitiDgc  of  ye  relj _..:..  _„      ,  ^.  ^    1  arao 

in  accidcDtall  surpryaes  as  10  roeittings  pur|«j« 
and  that  ye  Urst  dittay  waa  alteniatiue  and 
thaiae  evasiones  nocht  alled^t  and  in  ane  at- 
ternadre  aense  admittit  to  &e  knawledge  of  ] 
ane  assyse  and  conforme  jMyrto   thair  dely-  ' 
uerance  wiis  altematiue    4^  duplyit  for  tlia 
pannell  tbat  we  repeil  v>  former  oxisV  evince-  ^ 
log  frome  ^n&^  law  ainl  rcasone  the  ropulattuct 
sens*  of  the  act  of  pari iani  '    ue  takiflv 

of  witiinglie  as  it  presuppo  IJie    Aoa  - 

we  vrge  my  lord  ailuorat  i^u  uv  muik**  in  con- 
science   That  parteis  kuuwin  to  half  bene  stir-* 

pry^tand  vtolenced  f'>r  ■•  •  *- ■ '^  ■*  Is  evident 

tbat  mony  in  ye  bit  fl  ^le  force! 

to  g-eve  y>  purser;  to  .  -u..  .  c  .  ..  sould  bo 
puneist  capitallie  for  upeiking'  wuh  him  wit* 
tinghe  albeit  it  be  constant  that  it  was  ;tgnini<t 
yaif  will  quhilk  is  ordtn^  in  statutes  and  in  tlio 
nctH  of  jnitliatncot  And  the  tautologie  and 
'jiitie  of  wonlis  q'Ikia  ar  nochi  con^' 
le  in  wnsidcTatioun  of  yre  cruell  ah- 
li^a'ditte  or  jaw  sould  vtherwayis  he  bmndit  * 
with  and  tlie  exact  dilligenco  requyret  be  tli^ 
ui  HiaTnent  argucth  net  that  ye  qunlitin 

<i  .lid  irapoirt  tbe  cryme  utimercom- 

li  iiout  will  and  intenlioun     And  the 

^  I  ne^hgence  ami  oniissionn  of  pair- 

tii^  ..i.i  ♦lib  not  relevanthc  commissioun  and  a 
i:T\me  qnbilk  cannocht  4io  without  a  wilfull 
ftpri  vnu  vfrrui*  intentioun  previous  and  inier- 
I  te  act  of  cry  toe     ChcilUe  seing  th^ 

«u  ,   J  the  rehi'lli,^  waft  fmiecci«ar  elilof 

protcriptjoun  and  yuir  recept  and  randievoua 
HI  Rolhiemay  waa  nottoV  to  >e  magistrtiitii 
And  coii5(«  quWitlie  yair  being  hi  the  cuntrey 
ncridit  not  to  he  tfvtiiiiul  hxhtWe  the  aUematiuo 
conceptiomi  of  the  jndgcs  '  ijf  and  of 

ih^  abyyacss  delyuQran^  be  u**  t/i  iha 

act  of  parliaineiil  reuJht^fc  1 
lioim     /     * 


"as' 


147]  33  CHARLES  II.     Proceedings  agalmt  Alex.  Blair  au J  oiherM,     [148    J 


conscience  tliay  thopflit  thamesclfiis  obleist  to  j 
conceive  it  And  vpone  thair  conceptioiin  of  it 
to  ucqnit  James  Gordoun  of  iutercomniouinj^ 
uittiu^iie  as  it  im|K>rlcs  a  crymc  and  the  noclit 
pro()oncin(|^  of  the  foirsaid  defence  v|K)nc  the 
disiunctive*  sens*  of  the  act  of  parliament  can 
not  he  obtriiidit  Becaus  the  (littay  ^vas  con- 
ceavcd  of  intercom  moning  g^DcraUie  without 
thease  qualitcis  And  it  was  vr<^ct  be  ye  said 
Mr.  John  Nisbct  as  prolo'r  for  ye  pauncll  that 
it  was  imtlnvant  nocut  expressing  thease  qiia- 
liti'is  proj>oscfl  be  hiiu  copulatiue  as  (ho  proces 
will  schaw  and  it  was  nevir  doubt  it  that  it 
could  be  takiu  vtlierwayis  And  (["r  the  dispa- 
/itie  of  Waiter  Hay  his  intcrcomnioiiin«i^  with 
James  Grant  is  reply  it  frome  the  difturent  <pm- 
liteis  tiie  aiic  beinj;  ane  passen^^er  the  vthcr 
resident  in  the  cnntrey  anil  a  Gordoun  pre- 
sumet  to  i'auour  the  relrellis  of  his  name  and 
IV'alttT  Hay  bein'^'  ane  honest  vnstispect  man 
and  knauin  vnfreiwl  to  Januts  Grant  and  James 
Gordoun  knawin  to  be  ane  ilai^^itious  man  fylet 
be  thnmcselftis  of  slauchtcr  and  pcrsewit  be 
the  loird  of  Frcndrauclit  and  put  to  ye  home 
for  non  vndcrlying  ye  law  for  soirniiig  and 
denuncet  rei>ell  and  c'tcnit  in  the  I'rez  producet 
to  vtM'ifio  the  rebellioun  of  the  rebellis  with 
wliomo  he  intci*commoned  and  tane  be  my  lord 
inar«picis  and  sent  in  choyncs  vpone  dilatioun 
inaifl  of  him  as  ane  perturber  of  the  coinitrie 
It  isduplyit  y'to  that  ye  parrallcll  of  the  tna 
caices  is  i'nstancejtix)  evince  that  the  best  subiectis 
may  be  necessitat  to  intcrcommoun  wittinp^lie as 
>\  alter  Hay  without  incurrin*f  ony  j;u;it  or 
pwnischment  and  y'foir  the  (jualitie  wittinglie 
without  ^lillinj^lie  cannot  reJevantlic  infer  a 
cryme  and  thaisc  disparitels  was  nayer  vrj^tt 
nor  constant  to  ye  assyse  And  as  for  the  dis- 
purilic  in  the  poynt  of  aboid  the  ane  beingf  bot 
^iie  passinirer  the  vtlier  ane  resident  it  is  not 
considerable  tliease  that  ar  resident  i)cintj^  als 
obnoxius  to  surprises  as  vtheris  and  the  lust 
fcir  of  residentis  beni'j^  moir  impressiiie  and  ex- 
ciiv:tab!e  Not  only  in  respect  of  the  imminent 
\  iolence  ^if  thay  had  untymouslie  bewrayed  vn- 
towardnes  bot  in  respect  thay  souUl  haifexposcd 
lhaii!r«:e!flislolliediiyl:epray  ofreliellis  And  lor 
the  dispwritic  uf  yair  lyfc  ar.d  probilic  it  was  not 
vr^^rr  ai;il  liie  panneiliscoiivictioun  of  slauchtcr 
as  it  v.'i..!i(  atis  the  assy  so  is  frome  partialitie 
in  rrspi  ot  thyy  coiiviclit  him  of  ar.e  mair  ca- 
jiilall  cryme  than  intercominoning  sua  it  can 
found  a  presnmptioun  cf  ane  cryme  altogidder 
diO'erent  seiisir  the  reuiibsiuun'of  the  pairtie 
interest  and  letter  of  slaucs  producet  to  yeas- 
s,>  se  seliew  tliat  (ke  slauehter  comittit  lie  him 
was  rather  be  fatnlilie  and  surpry^e  in  liis  de- 
fence as  it  was  \T:i^et  be  the  sui.l  y.lt\  Jo'n  his 
prelu'r  than  vp^nf^  toirihui.'.il  fellotiie  Ani  his 
former  l\ie  beiu^  vnknawin  to  thir  geutilnun 
Jiow  i^ipannellit  as  they  will  depone  vpone  y  V 
couscieiiees  and  nocht  iK-jnjy  traducct  be  my 
lort]  aduoc  it  couhl  not  vncharitairiilie  be  pre- 
suniet  to  be  ilai<:itious  and  the  IcUcr  of  lioirn- 
iii£;  .conteniiijT  James  Gordoun  liis  denuncca- 
tioun  was  not  vrtret  and  coateins  na  sic  thinpf 
uatbcr  cau  Walter  ilay  bis  fgibaequeat  loyallie 


and  dini<^nce  in  conVooating  people  to  persew 
James   (inint   expiat   his   witting^  iDtercom- 
u)oning  {^if  it  be  a  cryme  as  it  is  not  nor  Jamei 
Gordoun  his  ne£r!i]crence  to  doe  the  lyke  be  tna 
ag^ravat  seint^  intercommohin^  with  tbe  re- 
bellis and  uocht  apprchendiDSf  of  thame  ar  dif- 
ferent crymes    And  James  Gordoim  was  only  ' 
indytit  ot'  intercommoning'  and  his  omissioaa 
in  noclit  deluiting  caii  not  be  rcspectit  dler 
notto'r  kuaw ledge  of  the  rebellis  being  in  ye 
cuntrie    and    harbouring^  in  Rathiemay    And 
qnhair  it  is  replyit  that  the  defence  proponet 
tor  James  Gordoun  that  bis  intercommooing 
was  not  s|ionianeous  bot  forcet  cannot  be  re- 
8[iectit  becaus  it  was  repel  I  it  in  tbe  firet  pro- 
ces and  because  it  (luaurattes  only  to  pui]ga 
his  secund  metttin(>;  othair  bcin^  na  act  or  tio- 
lence  condescendit  vpone  at  hLs  first  meittin^ 
and  becaus  it  is  contrair  to  his  denoaitionei 
qualifeinjnr  pre^nantlie   nocht   only   tiis  will- 
in^ies  bot  iamiliaritie  in  bis  conrarenoe  stay 
souppin^   with  the  rebellis   and    lying   w't 
the  rebellis  in  ane  chalmer  without  ony  men- 
tioun  of  \  i  (deuce   It  is  duply  it  as  of  beroir  that 
it  uas  re|iellit  as  inept  to  stay  the  pannell  Itoiim 
going  to  ane  assyse    Bot  nbcht  to  vindicat  tbe 
pannell  beinqr  fundin  eiler  tryall  to  bait*  bcaa 
violenced  seing  in  law  and  nature  Ju$lut  waiu$ 
is  ane  irrefragable  defence  admitted  in  the 
most  bluidio  inquisitiounes  and  amangst  bar- 
bares  And  his  first  meitting  was  purgct  be  ye 
said  Mr.  Jo'n  Nisbet  bis  prelocutor  in  respect  of 
his  surpryse  and  iustfcir  quhilk  in  law  and 
conscience  '*  non  solum  potest  sed  debet  CA- 
dere  in  constantem  virum/'  Decretalibus  de  iit  . 
qui  metus  cansa  ca|).4 .  Itequires  not  neceaiairilie 
a  present  act  of  violence  foot  is  defynet  in  law 
'*  nistantis  vel  futnri  nericuU  causa  metus  trepi- 
dctio"    L.  1.  if.  quod  metus  causa    As  h  at 
leuth  evincct  in'  our  former  ansV  and  in  tbe 
pi*esent  caice  Ifonre  rciloulttcd  men  armct  with 
pislolcttis  micht  haif  quelled  the  maist  coo* 
stant  and  loyall  man  being  alone    And  lastlie 
the  pannell  *his  last  meitting  is  at  lenth  tIb- 
dicat  frome  being  wilfnll  as  is  cleir  be  our  ana'rie 
And  quhair  it  is  rcplyed  that  the  assysoni  ar 
tyed  to  judge  accoirdmg  to  ye  probatioun  de- 
ducetbe<bir  thame  and  not  according  to  yair 
prifat  knawlep^e  seing  the  act  of  parliament  re- 
quotas  that  all  probatioun  sould  be  vaet  op- 
piulie  and  it  sonld  convell  all  justice  gif  judges 
vpone  pretext  of  yV  privat knawledge  souldba 
licenciat  to  judge  at  randome  and  that  the 
testimonieof  sonie  ofy'rawin  number  being 
vpone  craleit  et  ex  auditu  frome  tliaise  that  war 
teyntit  with  ye  lyk  gui(t  could  nocht  baiff  bene 
sntiicicnt    informations   to   the  assyse  aeiif 
Koliert    Collie   and     ilol>crt    Dempster    fitt 
ipdiomc  tliay  had  knawledge  was  denumxt 
rebellis  in  the  same  Trez  producet  be  my  lofd 
adnocat   to   veritie    Nathaniell   Gordoun  and 
Alex'r  Leith  y  air  relK'llioun  It  is  duply  it  that 
quhan  ane  fact  is  only  proven  be  the  vertficn-i 
tiones  adducet  and  the  qualitie  purgeing  Ibn 
fact  and  cryme  as  that  of  necessary  dmnce 
in  slauchteris  constant  to  assysourea  in  j> 
prirat  knawledge  tbay  sould  judge  aceoirdi^f 


p' 


J49] 


upan  a  Process  of  Error. 


A.  D,  l6BU 


fI50 


to  yair  awin  |»rftppcr  kuai»le«lge  since  lliay  ar 
atlestet  »s  witnehs*  anil  lUair  leHtioiuuie  is 
€omp;ail4e  will*  itje  verilicatiout^  aclUucct  To 
atlii'ini:  lliaL  tjit  a  jiairtie  convict  be  ijie  depo- 
•itioneiior  witnes*  of  slauctitcrsaulil  relbr  liim- 
■elflo  ye  knawkd^e  of  ane  as^yse  viz.  that 
W  iiad  eomitiitlcd  it  being  luriuus  or  in  bis 
jiwiii  ilefence  it  war  absunl  to  afliraio  iliat  aoe 
assyse  in»y  nacLt  a^quitt  vpooe  yair  avrtn 
knaulcil^e  of  thcase  cxpiatorie  tiualileis  And 
the  act  of  parliament  ref^nyremgp  |>robatiaun  to 
be  diMl  licet  ojijiinlie  disbatjfes  nnl  assysoures  to 
tiitncs  tliair  knnwledg-e  qulian  tbey  ar  in  closet 
bot  ^irovydes  only  that  all  inlbrniulci  ies  to  ye 
assyse  aitdncet  be  yair  paifteis  souUl  lie  rfeducei 
pubiictlie  Item  llie  teslininnip  of  the  assyson* 
albeit  super  nnilita  my't  haif  ane  ^u\d  and 
warantuble  informative  be  ibeassysoni  consci- 
ence quha  :ir  not  tycdtn  extraneous  probalioun  i 
And  ar  [irolialionn  yamesclffisi  aiuHtie  rebf  lliouo 
«f  DeifijistcL- anil  Collie  cpiliilk  iny't  liaoe  rao- 
dered  yair  tLiilimonic  sospitious  was  not  vi^et 
to  ye  tirst  assy^  lie  my  lord  adtioeat  and  ye 
dispute  be  ye  panncfl  his  pr*j*r  bcires  tlmt 
tbey  war  vnsnspect  iiicn  and  Ibaii  war  not 
braodit  (o  ttie  paiinifbis  kna>vk'dL''eant)  yclVez 
ibaii  prodnuei  bdoir  tJtanit'  boirnubic  tbin^ 
And  qiihair  as  James  Gordoun  b!»Todetitifu]ije:( 
is  atj^f^ravat  in  respect  be  joy  nil  with  ibaoie  of 
ye  bouse  it  is  at  It-oth  ansv**eirit  M'oir  and  i|*r 
as  it  is  vrgel  that  aii^  sen  and  of  the  house  be- 
ing scboie  furih  iny*t  liaue  bene  direct  it  be 
iames  Goi'donn  to  aduertr-is  the  eimtrey  hh 
«hijdyit  th:il  beintr  detenit  u'lin  he  could  not 
haif  penetrut  itic  durto  ^e\(Mlirectionn  .Ind 
CoUiet^nnm  bis  fait  can  iiocht  be  imputed  to 
James  Goidouu  and  tf  r  it  is  reply  it  tbaf*-  nul  • 
luiii  fuit  si^niim  viokucie  et'  resistencie  et 
qnod  coactio  uou  libtftat  n'lsi  denuQciaito  se- 
ijtiaiur'*  It  is  ans'rit  that  in  law  nocbt  onlie 
viz*  (]ulvilkiE>  relative  to  ret^istnnce  Bot  ^*  Jnstus 
luetus  e^cusat  quod  metus  caum*^  qubilk  is 
not  only  **  oh  presens  nericulom  setl  foiurom*' 
And  tlie  instance  of  blak  itiaiti  in  rbe  paying' 
qr*of  oaiitciy  albeit  violenced  ar  eiccnset  isooclit 
€onhidemb!e  bec;ius  ibepayerisof  bbk  niajll 
inaketh  ane  illie^a  and  voluulai  fraciioun  with 
rebelbti  quhair  a*i  tbey  may  schelter  ihanie 
selffis  IVome  yair  viuleuce  be  a  retftit  ia  ike 
cmitrie  xlntt  implore  the  protection  of  the  king- 
and  counsel!  and  tbair  is  great  oddls  behiix  a 
pi-eseot  surprymnjr  and  imminent  violence 
atid  a  vohmlar  li^  witU  relidlis  and  a  *>ufferring 
of  thauie  tn  reave  herrie  and  oppress  tbair 
nichtbor*s  with  yairknawlc(f;:c  and  m  tbair  si^lu 
w*lbout  resisiancc  or  contrudictioun  as  ibe  act 
of  pariiament  anent  blak  maill  btirls  and  payeris 
of  bbik  maill  ar  lyable  as  suppliearis  ot  rc- 
beilis  be  aue  has'  tribute  In  respect  q*i'  of 
it  hi  evident  that  the  diltay  k  nawayis  relevant 
oocbtwitb standing  of  the  replyis  maid  be  the 
lord  aduocat  and  the  f|ualilje  v^'uiiigbe  wiiboul 
viJfullic  cannot  impoiri  a  cry  me  Kpeiriallie  se- 
ijilj'  wiuiny:lic  is  liot  anes  meniionat  in  ye  aelis 
of  parliauient  viz.  the  act  of  kin^  Ju.  the  6 
par.  7  id  anno  1540  Qnbair  tt  is  joynel  with 
the  wot'dts  reccpt  defeud  sapplie  maateaxie  or 


due  fiiuouris,  and  not  with  intercmnmornDt;  in^  | 
the  actes   |jrohilicittin^   inlercommonins;^  q'lk 
re<|uyres  wdliilnifs  and  iutentioun  be  ye   woriU 
presume  to  take  vpMin  haniL  as  is  alreddifl 
scliawin     And  the  act  of  pitrliament  of  king 
James  the  fu'st  his  third  [iMiuisient  qubilk  i>s  tha 
ground   of  all  the  rest  of  the  actis  a;»'uiuj>t  i 
ccptcris  and  manleiaeri«  ol  rebeliiii  iM^jres  tha 
ua  man  sail  i-ecept  or  manteane  retirllis  wilfnllifl 
and  makis  no   meutioun  of  wi(iiii«i|ie     And 
y'foir  seing  **  posteriorcs  Ie;;es  ad  prinres  |»er«-|J 
linent  vbi  ag-itur  ile  interpreiiitioue^'    ft',  de  I 
gibus  L.  28.  The  foii*<aid  act  of  necessite  n»o<fJ 
tnler|)reii  all  the  subsequent  actis  of  that   na<^ 
tureiii  a  sen's  consonant  with  the  commou^J 
law  iriid  reason e. 

Tlie  J  nstice  c*tioewis  this  dyet  tn  ye  morn* 
the  11)  instuutis  and  uiditnis  the  pannell  to  tin4  j 
cautioun  fur  y'  reeiiliie  vnder  the  panes  Bp'cit 
in  ye  former  actis  set  doun  hL-ir<aneut. 

'I'lie  caiilioneris  foirsaidii«  t noil  be  ye  panncll 
ilk  the  hisl  act  beings  personiiallie  pr'ot  becaui*! 
cautionciis  tor  ye  pannelli*  re -en  In  e  ibc  saiil'j 
xi\  of  Dec^ember  inataot  inder  ye  panes  futr* 
said  is. 

llie  persontis  of  assyse  watnit  apnd  act^ 
vnder  ye  panes  foirsadis  qrSpoue  my  lord  ad- 
uocat  ask  it  innlrvmenlis. 

Curia  Jlstiljarie,  S.  D.  N.  Rej^is  lentaiu  Pro-.J 
toiio    de    KdV  decimo    nono    1  let'em  la  i«! 
lo33t  l*er  Mai^ros'  Alexaudi  inn  Cnlnile  et 
Jacolium  Rubertoun  JuslicianosilepnUtius. 

Contiaewit  to  the  saxt  of  July  nixt  1036. 

Iniran, 
Alcvander  Irteing^  of  Lenturk:. 
AlcjiiHiicr  Bancnmm^  of  Elsik. 
Atevantkr  Abetxroinbie,  of  Birkinlioi^. 
Hector  Abcrcrmnbic,  of  Felterneir, 
Alcxutiiter  KeifftyOi  iJiiffus, 
Witlinme.  Seatoun^  of  8cheathyn. 
JohtvlfgUyir,  of  (f lassache. 
Gcorgr  GorJtmn^  of  Tilliechowtne, 
Geor^f'  GordoitJi^  of  New  toun* 
Mr.  j\Ia(how  Lumwkdcn^  burgees  of  Abcr* 

dene. 
James  Seatoujjf  burges  yair. 
ChairlcsSlevin  Lit^fcr^  biirges  jair. 

DilajtH  of  yeerror  commiltitbe  tbamc  in  tba  j 
temerariMs  and    uiU'nll    acquitting   of  Jamtj  t 
Coi<l(iun  of  3e  wilfull  and  wittin|jf  intercom- 
iiionin<^  with  the  rebi'Uis  c^tcnit  in  bis  dittay. 

PertfTiur, — Sir  Thomas  Hope  of  Craighallf 
knyi^ht,  bis  ma  tics  ad  uocat, 

Pmhculon  in  Dejlncc, — ^Ir,  James  Bainl, 
Mr.  NisLiel,  Mr,  Thomas  Nicolsone  younger. 

July  0.  The  justice  with  advyse  of  ye  asses* 
^rsaiid  ofi'oiisent  of  ye  pei'sewur  cciniinewis 
this  matter  (ulhe  tirst  \Veduesday  of  July  nix  to 
cum  lieing  the  saxtday  ofyesabl  monetli  and 
ordanitthe  pannell  to  find  cautioun  lor  yair  re- 
cntrie  and  comprirance  that  day  in  the  toU 
buib  of  Edinburgh  in  the  bo* r  of  caus^  to  vndci  ly 
the  Uw  tor  tli&  cry  me  ibirsaid  Ilk  persou« 


35  CHARLES  IL    ProeeedingiagainH  Alex.  Blair  and  others,    [IS» 

Curia  Justiciarlb,  S.  D.  N.  Regis  tenta  in 
Pretorio  de  Edinburflrb  octmoo  Jalij  1656 
per  Ma'eros  Alexaa£rain  Coluile  et  Ju90« 
Dum  Robcrtoun. 

Intran^ 

Assyse  of  Error  c^lenewit  to  ye  XT  instantif. 

Alexander  Irwingy  of  Lentuik. 
Alexander  Banerman,  of  Elsik. 
Alexander  Abercrombie^  of  Birkinboi|f. 
Hector  Abercromkie,  of  Fetter  neir. 
James  Seatoun^  burges  of  Aberdeen*. 
George  Bmcct  saidTer  burges  y'r. 
George  Gordoun^  of  Tilliec'boudie. 
John  OgUvie^  of  Glassak. 
Alcrandtr  Kcyth,  of  DufTus. 
William  Seatoun,  of  Schethyn. 
Chairlei  SUvin  LilsUr,  burges  of  Aberdeo. 
3Ir.  Mat  hew  LummitdenthurgcB  y*T. 

Dilaitit  of  ye  errour  committit  be 
ye  temerarious  clangeing  of  James 
sune  to  George  Gordoun  of  LogyaJtoun. 

Persetcar. — Sir  Tbomas  Hope  of  Craigiiall 
koy't  barronet  bis  ma'ties  aduocat. 

Prolo'rt  in  Defence. — ^Mr.  James  fisird-* 
Air.  Tiiomas  Nicolsoun  younger. 

The  Justice  coDtineviriB  iQterlomiitor  tp  js 
fyftene  of  this  instant  moneth  or  July  -  Ami 
ordanis  ye  pannellis  cauteoneris  to  stand  ob* 
leistfor  yair  entrie  yat  day  Tuder  ye 
c'tenit  in  ye  former  actis. 


151] 

▼nder  pane  of  ane  tliousand  merkis  for  obe- 
dience qr'of  Compeirit  James  Cheane  of  Ar- 
nnf^e  quha  l>ecomc  sou'tie  for  ye  entrie  of  the 
said  Alex.  Irwing  of  Lcnturk  Alex.  Abercrombie 
of  Birkioboig  Williame  Seatoun  of  Scheathyn 
and  Mr.  Mathew  Lummisden—Lykas  William 
Gordoun  of  Tulloche  compeirand  personallie 
become  souertie  ibr  ye  entrie  of  Alexander 
Banerman  of  Elsick — Compeirit  lykwayis 
Alex.  Abercrombie  of  Biikinboig  and  become 
st>ueriie  for  the  entrie  of  ye  said  Hector  Aber- 
crombie of  Fetter-neir — Compeirit  in  lyk  nia- 
ner  George  Gonloun  of  TuDiechowdie  and  be- 
come souertie  for  entrie  of  the  said  Alexander 
Keyth  of  DuflTus — Lykas  ye  said  Alexander 
Keyth  of  Duffus  become  souertio  for  entrie  of 
ye  said  Georgre  Gordoun  of  Tulliccbowdic 
And  siclyk  the  said  Alexander  Banerman  of  El- 
sick become  souertie  of  ye  said  CJhairles  Stevin 
And  lyk  way  is  compeirit  personallie  Johnne 
Gordoun  of  Inner-markie  and  become  souertie 
for  entrie  of  ye  said  George  Oordonn  of  New- 
toun  And  last  compeirit  John  Seatouu  baxter 
buries  of  Edinburgh  and  become  souertie  for 
entrie  of  ye  said  Jiunes  Seatone  burges  of  Aber- 
dene  The  day  foirsaid  vnder  ye  pane  abouc 
spe'it  Quharvpone  my  lord  aduocat  askit  in- 
fitrumentis. 

Curia  Justiciarije;  S.  D.  N.  Regis  tenta  in 
Pretorio  Burgi  de  Edinburgh  sexto  Julii, 
1636.  Per  Mag'ros  Alexandrum  Coluile 
et  Jacobum  Robertoun  Justiciarios  de- 
putatos. 

Assyse  of  error  coutinewit  to  Fryday  ye  ?iii. 
Julii. 

In  I  rah* 

Alexander  Iraing,  of  Lenturk. 
Alexander  Bannermnn^  of  Elsick. 
Alcxundt'r  Abercrowbic,  of  Birkioboig. 
George  Bruce ^  satdler  burges  of  A'b'd. 
Hector  Abercrombie^  of  Fettter-neir. 
A  Uxa nder  Keil A ,  of  D ufTus. 
Wm.  Seatoun,  of  Sitheathin. 
JamfsScatounj  burges  of  Ab*d'. 
Chair  its  Stevin  Litstcr,  y  V. 
Mr.  jMuihozo  Lumisden, 
Gtorge  Gordoun^  of  Tilliechowdie. 
John  Ogilvic,  of  Glassiche. 

Dilaittit  of  the  error  committit  be  thame 
ill  the  partiall  and  wilfull  clyugcing  of  James 
Gordoun,  sone  to  Gcop^  Gordoun  of  Logy- 
altoun.  ' 

Pcrxmar. — Sir  Thomas  Hoip  of  Craighall 
kny't  barmnet  his  ma'ties  aduocat. 

The  justice  with  aduyce  of  his  lo'  assesso'rs 
continowis  interlnqnitor  vpoun  the  alledgances 
duply  is  and  triply  is  and  ans'ris  maiilyr'lo 
in  this  proces  of  befoir  to  Friday  nixt  and  or- 
danis the  i^au'rs  fund  of  beibir  to  stand  for  the 
defenderis  Tnder  the  paine  contenit  in  the 
former  act. 


Curia  Justicurie,  S.  D.  N.  Regis 

pretorio  de  Edinburgh  decimo  qmnto  Jolfi 
1636  Per  Mag'ros  Alexandrum  Coloile  de 
Blair  et  Jacobum  Roltertoun  aduoeatnitf 
Justiciarios  depotatos  diet.  8.  D.  N.Rqgit.* 

Intran*        [as  before.] 

Error  cHinewit  to  ye  sncii  Febrnar. 

Dilaittit  of  ye  temararious  and  wilfull  cirbr 
committit  be  thame  in  clangeing  of  James 
Gordoun  sone  to  George  Gordoim  of  Logyal- 
toun  of  ye  cry  me  cHenit  in  hisdittay.       ^ 

Penewar.^Sir  Thomas  iloip  of  CrughaU 
kny't  baronet  his  ma'teis  aduocat. 

Prelo^rg  in  defence, — Mr.  James  Baird  Mr. 
Thomas  Nicolsone  younger. 

The  paunell  takis  iustrumentis  of  yair  entria 
and  protestis  i'ur  yair  cautioneris  releiff. 

The  Justice  continewis  interloquitor  zit  as  of 
befoir  to  the  xxii  day  of  Februar  nix  to  con 
Anil  ordanis  the  pnnnollis  former  cautioneris 
fund  be  thame  sf  befoir  ?iz.  vpone  ye  19  day 
of  December  last  ^OSo  to  stand  obleist  for 
ye  re- entrie  ye  said  xxii  day  of  Feb'r  niz 
to  cum  \'nder  ye  panes  spe'it  in  ye  said  act 
And  declaires  that  ye  compeirance  of  John 
Ogilrie  of  Glassach  and  James  Seatoun  m' 
name  of  ye  rest  of  ye  patmeli  that  day  sail  to 
admittitj&c.  ' 


Curia  Jvtenanum  H.  D.  N.  Regit  tetita  In 
pretomde  Eilinb'r  acxii  Fi-liruafii  i»37  Pef 
Ma^'rum  Aicxiiiidrutt]  Cotuile  de  Blflur 
Juiiicmriutti  dcpulaluiiii 

CoDlrair  the  Assyso^n  of  Error  contioe^it  to 
the  xjtii  Junii  Dixi> 

Aaeot  Ve  criminall  dyct  and  (tronuncemg'  of 
interloqurior  y^intiU  vpoue  the  aUcadga^cfs 
and  uii(i*ri6  midd  in  ye  actioun  and  caus  per- 
se wit  be  his  maiesteis  aduoctit  for  his  bet  ties 
intr^s  aganis  AleJKiind^r  Irwing^  of  Lenturk 
Alexander  Abercruinbie  of  Birkinboig^  Wil- 
liam 8caloua  of  Sc  I  leatbyn  iind  Mr  iMathow 
Lnmmisdea  burifpa  of  AI»crdeeii  Alexander 
Baiicrinan  of  Elsik  Hector  Abercrombie  of 
FetteT*neir  Alexander  Kcy^l  of  DufTus  Ueor^i! 
Gordoim  of  Tilliechoivdie  Chairles  Htevin 
George  Gorduan  of  Nevrtonn  George  Brtico 
tiiidler  burgca  of  Aberdeen  and  James  hSea- 
lone  burccK  y^  Ver  ye  ailed yfit  error  com- 
luiitii  Ijc  tbaiue  in  acquittini^  and  clang^eing  of 
Jtine*  GordouD  sone  to  Geoi^e  Gordouo  of 
(ilKyaUolm  of  3  e  cr^  mc  cUeait  in  his  dittay 
they  being  suarne  and  adtnitlit  vpone  bis 
MByte  a»  ye  suinmond  and  dittay  of  yr*  wil- 
fulf  error  y^  aueni  in  tbu  sehf  proportis 
Quhilk  intenuquitor  and  pronunceing^  y 'of  was 
vpoue  llie  XV  day  of  July  last  1636  coniinewit 
|h  to  thir  day  And  eautioun  funds  be 

y>  i  '  n*fmes  ddenderis  for  ye  entrie  antl 

com|»eiraiiee  iU'iH  day  and  place  to  ye  effect 
and  vnder  ye  |>anes  spei*t  in  ye  act  maid  yr* 
TDoun  cofiijieirit  jiidiciallic  sir  Thumas  Hope 
hiacnaiesteisaduocat  for  his  hienes  intres  as 
pertewar  on  the  ane  pU  and  on  ye  vther  p't 
thejsaidis  per«oDea  defenderia  being  oRytoes 
calht  to  haif  compeirit  perHonallie  and  enlerit 
Ibametdffis  vpooe  pannel  at  tbay  that  fatjd 
cantioun  for  ^t  re -entrie  and  coropeirct  this  day 
and  niiice  to  ye  tWect  aboue  uritteo,  cornpeint 
]^r.l^)bert  !*«'•,,.  ivryter  in  name  of  ye  haill 
defenderia  ;Lt  u  And  nruducet  ane  act 

ofyebrdis  v,  _l  coimsall  daiitit  at  £din- 
byrgh  the  liaxt  day  of  December  last  by  past 
ordanio^  and  commanding  his  maiesteis  jus- 
tice cl«frK  and  y^r  depuUiti  to  coulinew  ye  aaid 
dvet  to  ye  tuentie  tua  day  of  Junii  nijc  to  cnm 
of  ye  q'lk  act  of  couuaell  the  tenuor  folio  wis  : 

**  At  Edinburgh  the  saxt  day  of  Doeerober 
sceir  of  God  1  ra.  vie,  threttie  tax  yeirea 
anent  theiiiippUcatiouu  presentit  to  ye  lordi»  of 
1*^  LSidi  be  Alexander  Irwingof  Len- 

in ^selffand  in   name  of  ye  remanent 

^*  ijiMiirpi  wbowarsiimmond  rponethe  aasy^e 
tit'  ei'tor  cttncerning-  JanitH  Gordonn  foakand 

€ntioun  That  qnhaii-  it  it  nocht  vnknawin 
the  Miidis  lordis  <|ubat  great  and  heavie 
ble  ft?»it  expend*  the  anpphcantcs  hes  sua- 
tcnit  besydc  ihe  nt'glect  ol  yair  adocs  at  home 
by  ^-air  lang  attenttance  vpone  that  pmces 
And  llow  ut  \Afii  efter  mony  cxintinuHtionen  it 
WM  COnlmeHit  to  ye  liiriHic  tua  dny  tif  Fe. 
Imiir  now  approachjng  c^Mk  ia    >  me 

And  to  ▼nMsaaannable  for  tmvelt  ye 

IKkrtho  hdr  that  it  will  hr^  ms<m  ,^  fg^  |{te 
•npplteantit  to  keip  that  dyi  l    i  :    ^'  ct  of  ti)e 


VOU^a 


of  the  zeir  q'tk  it  ever  mott  Tttteaaoo- 
ablo  at  thai  tyme  And  the  far  distance  of  tb 
place  being  abooe  four  tcoir  my  lea  thmn  tb 
bur^h  the  way  being  6o  delp  and  fonle  wid 
tuo  itrrreyia  and  ane  number  of  watt«m  and 
tnontanen  tnteriected  As  all  travelling  at  that 
tyrne  will  be  at  that  tyme  almoat  impotBtbl^ 
and  the  ait  seid  begynnc&  at  that  name  tyni« 
an<l  seasrme  the  ne^lectrng  qr*of  wilt  Tndoelhe 
maist  puirt  of  yr  supplicant  is  and  aetng  tbay 
hu»i  nevir^'bwQued  yr*  tryctl  but  erir  oStred 
yaniesettiif  y'viiut  iM  ane  legal!  tbrme  and 
incLncr  allowable  l>e  the  law  is  of  this  kiBgdOHM 
bumldie  dc?syreiug  y^foir  ye  saidis  limlb  •• 
giue  oonmiaud  lor  present  procca  or  vthcrwayf 
10  prorogat  tlie  said  dyet  till  the  tuettiie  tu 
day  of  Jnnii  nixt  lyke  as  at  n^air  tenth  hn 
tenit  in  the  said  sitpplicatioun  Quhilk 
re<l  hard  and  cotiaidilerit  \h*  the  satdis  lOfd^ 
and  thay  weiH  ad^ysed  ySvith  the  kutKii  wf 
aecreii   coiinsall  ordanis  ami   *  '      V's 

ma'teiii  justice  justice  clerk  i  t 

to  cmtinew  thccrimlnall  dyet  aoum:  ^^  <.iu;ii  rdi 
tht^  tuentie  tua  day  of  Junii  nixt  ami  to  di»« 
pence  wiiii  the  satdia  RopplicanttM  ihair 
peirance  rponc  the  said  xxii  day  of  Febnu 
fhay  finding  new  cautioun  coniorme  to  ofd< 
quhuir  unent  thtr  preseutessall  betothamaane 
warrand  And  the  saidis  lurdia  dedairet  thai 
sail  nu  prorogatioun  be  ufUrwardH  gran  tit  m 
this  matter  ordaning  in  ye  meane  time  hit 
nta'ties  justice  and  his  deputti^i  with  the  lord 
heigh  thejMiurer  of  this  kingdome  and  rema- 
nent attesio*ra  to  his  maiesteis  justice  to 
[>ei*Tse  aiMl  eonsidder  ye  pmcet  And  to  get  e 
furth  yair  interloquitor  ibairaoeot— >Exlra<?tiiin 
de  libris  actorum  secreti  consilii  8.  D.  N .  Itcgia 
per  me  Jacobum    Pryttirois  il^  w'^mj 

sub  meis  sigooet  subscnpliooe  k». 

"*  Sic  SubicnhUmrf     J  AcoBi>»  i m  ..i  kuis J 

Accoirding  to  the  quhilk  act  and  ordlnanrr^ 
of  a«cret  oounsalt  the  said  Mr.  Ilobert  Patrie  in 
name  of  ye  person es  defenderis  ulvoue  writtin 
ik^yret  that  the  dyet  aboue  tnentiontd  ap* 
poyntit  to  this  day  mychi  be  eotittntwii  beve 
justice  to  ye  aaid  icacii  day  of  Junii  nixt  lie 
justice  tor  obodteoce  of  ye  taid  act  of  coaotall 
and  ordinance  spc^rt  y'intill  continewia  tbia 
dyet  witli  all  pronune4.'nigof  ioicrloqmtorin  the 
premi&Mia  to  ye  aaid  tuentie  tua  d.i  i 

lilx  tu  c u  m  and  ordan  it  ttautiou n  to  U.  i 
dcfenderis  aboue  fi[}e*it  that  yai  and  ilk  ^lul  ut 
thame  tall  compejr  befoir  hi^  marcAlief  ju». 
tice  and  Wis  deputti's  in  ye  tolbuith  of  EdiQ 
burgh   the  sajd  xvii  of  Junii   nixtmnim  ut  y 
houre  of  cans  to  heir  interlmpniour  pt  ontmcc 
iu  the  nreiuiasis  and  to  vnderly  the  law  ^or  the 
eiroralmMe  writtin  taduriha  patust^pecitiet  in 
yc    former  actii  owid  Itt  tkliB  ff90m    Cm- 
{M  ii  il  \  utri'tler  ya  p«rfiouL«  r#*j»utictiua  fotlowtllC 

MlMr.ltV  ,df      ^ 

'  ttoun  tor  \i  uwia 

of  Leniurk  aod  Mr«  Muihut*  l^imtuHdatt  ] 
entrie  and  com|>riraiH^'  ye  aaidtaday  i 
to  ye  effect  and  vnder  the  pane  aboue  4 
CVm|»eintaliO  Mr.  James  CJieyne  i 


1531 


33  CM  AllLES  II.     ProcealitigM  agaiiut.AlfX,  Blair  and  others.    ^ISG 


caxxdoMT  for  Wm.  Leatoun  of  Scheatbyn  and 
George  Gordoun  of  Tilliecliowdie  and  obleist 
him  to  enter  air'er  of  thame  ye  saidis  day  and 
place  to  ye  effect  and  vnder  ye  pane  foirsaid 
And  siclyk  compeirit  Mr.  John  Abercrombie 
wryter  and  become  souertie  for  ye  entrie  of 
Alexander  Abcrcromlue  of  Birkinboig  And 
llectur  Abercrombie  of  Fetlemeir  compeirit  ii 
iyk  manor  James  Keytb  writer  and  become 
cuiitiauer  i'or  tJie  entrie  of  Alexander  Keith  of 

Ditfius    And  siclyk  compeirit  Alexander 

aaidicr  bi]r;>:;>s  of  Abenlcne  quha  l>e  h[»  band 

1»roi!uctt  \-o  Mr.  John  l*ai 
lis  proV  daitit  ye  xi 

souertie  for  ye  eutrie  of  George  Bruce  saidler 
And  Mr.  ilobert  Vdnic  of  I^nkming;toun  com- 
peirand  be  his  obligationn  [iroducet  be  himself 
daitit  the  tuentie  day  of  Fehruar  instant,  be- 
«ome  caution  for  ye  entrie  of  tlic  said  Chairles 
8tevin  Litster  the  snidis  day  and  place  in  the 
boure  oi'  caus  io  yc  effect  for  ye  causis  and 
Tnder  ye  pauis  aboue  expncuiit. 


wrangus  acquitting^  and  clanpfeing  of  James 
Gordoim  sone  to  George  Gordoun  of  Logyal  • 
toun  of  yc  wilful!  recepting  of  ye  rebellis  callit 
the  licht  horsemen  and  intercom moning  with 
thame  contrair  ye  actis  of  parliament. 

Fcrsewar-^lr  Thomas  Iloip  of  CraighaU 
knyt  baronet  his  maicsdes  aduocat. 

The  persones  on  pannell  askit  instrumentis  of 

ye  entrie  and  conmeirauce  and  protestLs  for 

ye  cautioneris  relcif. 

The  Justice  be  warrand  of  ye  lordis  of  secreit 

o     -         _       ,        ^    counsall  conforme  to  y'  lordshipis  act  and  or- 

..IWzouuger  aduocat    ,,i„^„^^  insert  yairin  of  yc  da\t  xxvil  day  of 

of  *ebr  mstaut  become    j^„jj  j„^^^„^    j^^^^j,  ^^  j^^,^^  ^^^  j^^j,,^, 

minall  proccs  led  and  deducet  in  yis  matter 
anent  ye  error  simplicitcr  Quhairvpone  the 
pannell  askit  instrumentis  off  ye  ql'k  act  of 
connsall  the  tennour  foHowis  : 

Apud  Edinburffb  vigesimoseptimojanii  Im. 
vie.  xxxrii — ^The  lordis  of  sccreitt  counsall  hare- 
ing  hanl  his  niaiestcis  justice  justice  cleric  and 
justice  dcputis,  and  the  assessors  appointed  to 
them  be  the  saidis  lordis  for  advysein^  the  procei 
led  and  deducet  at  the  instance  of  hn  maiestics 
aduocat  ajranis  Alexander  Irwing  of  Lcnturic 
and  vtheris  gentilmen  ivho  war  criminallie 
convened  for  anc  assyse  of  error  And  liarcing 
considcrrit  the  opinioun  and  judgement  of  the 
said  justice  and  assysors  foirsaidis  tuiclieing  Ibe 
relevancie  of  the  lybell,  and  of  the  pxccptiones 
and  answeiris  maiii  y 'rto  in  behalf  of  the  pan- 
nell And  being  weill  advyset  yairwith  the 
saidis  lordis  being  lothe  to  (f^ve  forther  in  this 
bussines  ordains  his  maiesties  justice  justice 
clerk  and  justice  deputtis  to  desert  the  dyct 
appointeil  to  ye  said  laird  of  Lcnturk  and  vtheris 
mentionct  in  the  crimiuull  Prez  and  nocbt  to 
proccid  ouy  farder  thairin  Dischairgeinc'lieirby 
the  justicre  clerk  and  his  deputtis  of  all  directing 
of  only  Trez  at  yc  instance  of  his  maiesteis  ad- 
uocat againcs  the  saidis  personis  vpoun  this 

ground  and  caus  iu  tyme they  re* 

ceave  ordour  thairauent  be  a  publit.!  delyvcr- 

ancc  from  the tabill  rpihairanent  and 

the  haill  prcmissis,  the  extract  of  this 

l)c  to  the  said  justice  justice  clerk  and  thair 
deputtis  a  suOicicnt  warrand — Ex'tractain  ds 
libris  actoruui  secreti  consilii  S.  D.  N.  Regis 
per  me  Magistrum  Gilbertum  Prymrajs  de« 
riciim  oinsdom  sub  mcis  signo  ct  siibifcriptione 
niaunalibiis. 

Sic  Su bscribit iir^  M  G .  I*R Y  m rose. 


Ci'RiA  JusTiciARLE  S.  D.  N.  Rcgis  tcuta  in 
Prctorio  Bur^i  de  Edinburgh,  vige&imo 
sccundo  J  unit  163  r.  Per  3Iag'rum  Alex- 
anulrum  Coluille  ct  Mag^rum  Jacobum 
Kobcrtouu  Justiciaries  deputatos. 

Intran^ 

Continewit  to  yc  28th  of  Jnnii  instant. 

Alexander  Irzoing^  of  licntiirk. 

3\Fr.  Mat  how  Lumisdail/^  hurgesof  Aberdcne. 

William  Scaloun,  of  Schithiiic. 

Alexander  Abercrombie,  of  Birkinboig, 

Hector  Abercrombie^  of  Fcttonieir. 

Alexander  Keiths  of  DufTus. 

James  Seatouu,  burgcs  of  Aberdcne. 

Dilaittit  of  the  error  comittit  he  yame  in 
fl^ngeing  of  Jamrs  Cvordoun  sone  to  George 
Ciordoun  of  LogyuUcun  for  yc  rcceptiug  of  yc 
rrbcUis  callit  the  light  horsmcn  specifeit  in  liis 
ditliiy. 

Vcrseicnr. — Sir  Thomas  IToip  of  CraighaU 
knyglit  baronet  his  l\lu*tcis  aduocat. 

l^rdocutor  in  defence — 3Ir.  Thomas  Nicol- 
sone  yoiiMi^or. 

TliVjn  St  ires  with  advice  of  his  ma^teis  ad- 
nnt^t  cuiitinrwit  the  interloquitor  vpoun  the 
alloflf^anccs  and  answens  maid  in  this  proces  to 
^Vc-dncs'.l.iy  next  the  tuentie  aucht  instantis 
the  personis  vponu  pannell  ilkane  cautioner  for 
vytli(  ryuir  rcontrie  that  day  vndcr  ye  paiucs 
spccifeit  in  yc  former  act. 

Intran^  eodcm  23  Jnnii  1637. 
Assyse  of  J'>ror    Dessertit  be  warrand  of  ye 
Icrds  of  secreit  counsall. 
Alexander  Irrring^  of  liCnturk. 
Mr.  Mathow  Lumisden,  burgcs  of  Aberdene. 
Jamei  Seatoun,  burgcs  yair. 
Alexander  Abercrombie^  of  Birkinlioig. 
Hector  Abercrombie,  of  Fetterneir. 
William  Seatoun,  of  Scheatbyn. 

Dilaittit  of  ye  error  comittit  be  thame  in  ye 


[AUhougb  this  CASK  of  .VSSYSE  of  ERROR 
is  not,  under  the  apparent  abolition  of  that 
process,  likely  to  fornk  a  prcci?dent  for  future 
prooi'LMlings,  it  seemed  to  me  to  be  on  several 
accounts  a  \ery  curious  document  of  Snots 
legal  antiquities.  I  ha\c  endcavouixN]  ex- 
actly to  exhibit  the  strange  orthography  (if 
I  may  so  say)  of  the  Record,  not  only  as  to 
the  vernacular  language,  but  also  in  the  au« 
thorities  mentioned  and  passages  cited  of  fo- 
reign authors.  As  to  the  incorrectness  of 
the  antient  Scots  Records  of  Justiciary,  see 
a  Note  in  vol.  10,  p.  881,  of  this  Collection.] 


157]     Proceedings  agaimi  the  Earl  of  Lauderdale,  4  c.  A.  D,  1682,  3.     [I5S 


329.  Proceedings  against  Charles  Earl  of  Lauderdale,*  Richaku 
Lord-MAiTLAND  his  Son,  and  others,  for  Official  Malver- 
sations respecting  the  Royal  Mint  of  Scotland  :  34  and  35 
Charles  IL  a.  d.  1682—1683.  [Now  first  printed  from  tlie 
Privy  Council  Books  at  Edinburgh.] 


XHE  fullowing  Narrative  and  Reflect'ons  con- 
cerning this  Case,  which  occui*  in  1  Fonntain* 
hair«  Decisions,  throw  much  Ught  upon  it : 

November  3, 1681. 

*<  A  commission  came  down  from  his  Majesty 
to  examine  the  accompts  of  the  treamry,  how 
the  King's  puhlic  money  hath  hcen  spent,  and 

employed  these  several  years  byiyone. This 

was  principally  levelled  against  Ualton  Treasu- 
rer-Depute,  because  the  most  of  these  who 
were  named  auditors  of  their  compts,  were  none 
of  his  friends. 

*  lie  was  brother  to  the  duke  of  Lauderdale. 
Sec  his  Case,  vol.  6,  p.  1025.  Lord  Halton 
appears  to  have  activelj^  co-operated  in  the 
mal- administration  of  affairs  in  Scotland  under 
his  brother  the  duke,  as  is  set  forth  in  the  fol-, 
lowing  two  articles  published  in  the  Coltectioiv 
of  8tate  Tracts  from  the  year  1660  to  the  year 
1665,  published  iu  169'i : 

••  Some  particular  Mutters  of  Fact  relating  to 
the.  Administration  of  Affairs  in  Scotland 
nnder  the  Duke  of  haudtrdate.  Humbly 
offered  to  your  Majesty's  Consideration,  in 
Obedience  to  your  Royal  Commands, 

"  1.  The  duke  of  Lauderdale  did  grossly 
misrefirescnt  to  your  mayesty  the  condition  of 
die  western  countries,  as  if  they  had  been  in  a 
gtate  of  rebellion,  thongh  there  had  ne^er  been 
«ny  opposition  made  to  your  majesty's  autho- 
rity, nor  any  resistance  offered  to  vour  forces, 
nor  to  the  execution  of  the  laws.  iBut  he  pur- 
posing^to  abuse  ^our  majesty,  that  so  he  rois^ht 
carry  on  his  sinistrous  designs  by  yoirr  author 
rity,  advised  your  majesty  to  raise  an  army 
ai^inst  your  {leaceable  subjects ;  at  least  did 
fnunc  a  letter,  which  he  sent  to  your  majesty 
V)  he  Ki(;nc-d  by  your  royal  hand  to  that  effect ; 
whirl)  bi-ing  sent  down  to  your  ci»uncit,  orders 
was  thereupon  given  out  for  raising  an  army 
of  ei;^hf  or  nine  thousand  men,  the  greatest 
port  whcnM>f  wcrp  Iligiilnnders;  and  notwith- 
atanding  that,  to  avert  threatening,  the  nobility 
and  tjrcntry  of  that  country  did  send  to  Edin- 
burf^^li,  and  for  the  security  of  the  pence  did 
offer  to  cn^iisre,  that  whatsoever  should  be  sent 
to  ]iot  the  laws  in  execution,  should  meet  with 
BO  affront ;  and  that  Uiey  would  become  hos- 
tages for  their  safety  :  yet  this  anny  was 
narched  and  led  into  a  peaceable  country,  and 
did  take  free  quarters  according  to  their  oom' 
t 


May  8,  1682. 

"  A  commission  having  come  down  for  try- 
ing the  State  of  the  Coinage  and  Mint,  to  duke 
Hamilton,  Perth,  Tweddale,  Athol,  Soutliesk^ 
the  Chancelk>r,  Register,  general  major  Drum- 
moad,  Gordonston,  Balie  JSaird,  $cc,  allenemiea 
to  Halton,  general,  and  to  sir  John  Falconer, 
master  of  the  Mint;  they  proceeded,  while 
Halton  was  yet  at  London,  to  take  cognitioit 
by  the  declarations  upon  oath  of  all  the  mem- 
bers and  officers  in  the  Mint ;  and  it  is  nid  sir 
John  Falc^er  in  hopes  to  liberate  himself,  at 
least  on  promises  that  it  should  extenuate  bia 


missions,  and  in  most  places  levied  great  sums 
of  money,  under  notion  of  dry  quarters^  anc} 
did  plunder  and  rob  your  subiects  ;  of  which 
no  redress  could  be  obtainetl,  though  com- 
plaints were  frequently  made :  all  which  wert 
expressly  contrary  to  the  laws  of  the  kingdom* 

*'  2.  In  their  quarters  it  was  apparent  that 
regard  was  onlv  had  to  the  duke's  priTate  ani- 
mosities ;  for  toe  greatest  part  of  tnoae  |ilacefi 
that  were  most  quartered  on  and  destroyed, 
had  not  been  guilty  of  the  field  com^enticlea 
complained  of,  and  many  of  the  pWoet  that 
were  most  guilty  were  spared  upon  privata 
considerations, 

*'  3.  The  subjects  at  that  time  were  required 
to  subscribe  an  exorbitant  and  illegal  pond» 
which  was  impossible  to  be  performe<l  by 
them ;  that  they,  their  wives  and  children  and 
servants  should  live  orderly  according  to  law, 
not  go  to  conventicles,  or  entertain  vagrant 
preachers,  with  several  other  particulars ;  by 
which  bond,  those  that  signea  it  weremaifa 
lyable  for  every  jnan's  fault  that  lived  upon 
their  ground. 

*<  4.  Your  ipajesty's  subjects  were  charged 
with  laborrows,denounood  ridels ;  and  captions 
were  issued  out  for  seizing  tneir  persooi  upon 
their  refusing  to  sign  the  aforesaid  bond  ;  and 
the  nobility  and  gentry  there  who  have  evt^ 
been  faithful  to  your  majesty,  and  had  appear-  » 
ed  iu  arms  for  suppressing 'the  last  rel)ellion,  ^' 
were  disarmed  upon  oath.  A  Proclamation 
was  also  issued,  f'orl»idding  them  u|>on  great 
penalty  to  keep  any  horses  above  four  pounds 
ten  groats  pric<». 

**  5.  The  nobility  and  gentry  of  the  ahine 
of  Ayre  were  also  indicted  at  the  imtanoe  of 
your  majesty's  ailvocate  of  very  bi)|rlici' 
and  misdemeanors :  whereof  some  did  ^ 
tre:ison.  These  indictments  wen 
them  in  the  afcniog,  to  be  woawmadhj  tlN 


1591 


94  CHARLES  II.    Proceedingi  against  the  Earl  of  LauderdaTe    [  160 


•WD  ff\n\tf  did  ifo  great  lengfths  to  load  HaltOD 
With  misdemeanourii  and  lualventations,  by  in- 
Tcnin^ihe  king's  part  of  the  emolumenta  of 
tlif>  S(r<)ts  Mint  to  his  o«vn  private  gain.    2.^  In 


the  next  morning  unon  oath :  and  when  they 
did  demand  two  or  three  days  time  to  consider 
ni  dieir  indictments,  and  crave  t)ie  benefit  of 
lawyers  U|  advisi*  with  in  matters  of  so  high 
coucemment ;  and  also  excepted  to  their  being 
put  to  sviear  against  themselves  in  matters  that 
were  capital,  which  was  contrary  to  all  law  and 
justice;  those  their  desires  were  rejected, 
though  the  like  had  never  beeor  done  to  the 
greatest  malefactor  in  the  kingdom.  And  it 
was  told  them,  they  must  either  swear  instant- 
ly, or  they  would  repute  them  guilty  and  pro- 
ceed accordingly. 

*'  6,  The  nobksmen  and  gentlemen  knowing 
themselves  innocent  of  all  that  had  been  sur- 
mised against  them,  did  pm^e  themselves  by 
oath  of  all  the  particulars  that  were  objected  to 
th«n,  and  were  thereupon  acquitted.  And 
though  the  committee  of  the  council  used  the 
severest  manner  of  enquiry  to  discover  any 
seditious  or  treasonable  designs,  which  were 
pretended  as  the  g[rounds  of  leading  in  that  army 
into  those  countries;  yet  nothing  could  ever 
be  proved :  so  false  was  that  suggestion  con- 
eeming  a  rebellion  then  designed  that  was  of- 
fered to  your  majesty,  and  prevailed  viith  you 
for  sending  the  aforementioned  letter. 

**  7.  The  onpressions  and  quarterings  still 
continued.  The  noblemen  and  gentlemen  of 
those  countries  went  to  Edinburgh  to  present 
to  your  council  the  heavy  pressure  that  they 
and  their  people  lay  under,  and  were  ready  to 
ofier  to  them  all  that  in  law  or  r'^ason  could  be 
required  of  them  for  securing  the  peace.  The 
council  did  immediately  upon  their  appearing 
there,  set  forth  a  proclamation  requiring  them 
to  depart  the  town  within  three  days  u^mn  all 
highest  pains :  and  when  the  duke  of  Hnuiilton 
did  petition  for  leave  to  stay  two  or  three  days 
lunger  for  some  very  urgent  affairs,  that  was 
refused  him. 

*<  8.  When  some  persons  of  quality  hnd  de- 
dared  to  the  duke  of  Lauderdale  that  they 
would  go  to  represent  their  condition  to  your 
majesty,  if  they  could  not  have  justice  from 
your  ministers ;  for  preventing  that,  a  proda- 
roation  was  set  forth,  forbidding  uli  the  subjects 
tu  depart  the  kingdom  without  license ;  that  so 
your  majesty  might  not  be  acquainted  with  the 
liaid  condition  of  your  subjects  from  making  their 
appUcation  to  your  majesty,  no  less  contrary 
to  your  majesty's  true  interest  (who  must  at.  ^ 
ways  be  the  refuge  of  his  people)  than  to  the 
natiirul  right  uf  the  subject. 

*'  The  turmer  particulars  relate  to  the  inva- 
sion of  ihc  rights  of  great  numbers  of  your 
subjects  all  at  once.  What  i^iiow,  have  in - 
deed  only  fallen  on  some  single  persons;  yet 
are  siwh,  that  vonr  whole  |>eople  apprehend 
they  may  be  all  upon  the  slightest  occasions 
brought  under  the  like  mischiefs. 

<*  t.  The  council  htth  upon  maDy  occa* 


making  the  fineness  below  the  standard.  9. 
In  coining  17,000  stones  of  cornier  moneys 
beyond  the  quantity  contained  in  ins  Majesty's 
two  warrants  for   the  copper  journeys:  'all 


sions  proceeded  to  a  new  kind  of  punishment, 
of  declaring  men  uncaimble  «f  all  puUic  trust ; 
concerning  which  your  majesty  may  remember 
what  complaints  the  said  doke  made,  when 
during  the  earl  of  Middleton's  administration, 
he  himself  was  put  under,  and  incapacitated 
by  an  act  of  parliament.  The  words  of  his 
paper  8g[ain8t  the  earl  of  Middleton  are  [an- 
capacitating]  was  to  whip  with  scorpions,  a 
punishment  to  rob  men  of  their  honour,  and  to 
lay  a  lastmg  stain  upon  them  and  their  poste- 
rity. And  if  this  was  cononlained  of,  when 
done  by  the  highest  court  of  parliament,  your 
mi^ty  may  easily  conclude,  it  cannot  be  dona 
in  any  lower  court  But  yet  notwithstanding 
it  is  become  of  late  years  an  ordinary  sentence 
in  council,  when  the  least  complaints  are 
brought  :^in8t  any,  with  whom  the  duke  of 
Lauderdale  and  his  brother  are  offended. 

**  Instances  of  this  are : 

**  Tlie  declaring  thirteen  worthy  citizens  of 
Edinburgh  uncaj^le  of  public  trust,  against 
whom  no  complaint  was  ever  made  to  this  day, 
as  your  majesty  will  jierceive  by  a  paper  mora 
fully  concerning  that  affair.  The  true  causa 
of  it  was,  that  those  men  being  in  the  magis- 
tracy, that  duke  and  bis  brother  could  not  get 
a  vast  bribe  from  them  out  of  the  towns -n 


which  was  ailerwards  obtained  when  they  weia 
removed. 

*'  The  provost  of  Glasgow,  Aberdeen  ani 
Jadburg[h  were  put  imder  the  same  sentenoei 
for  signing  a  letter  to  your  majesty  in  the  oon- 
rention  of  the  boroughs  with  the  rest  of  that 
body,  which  letter  was  advised  by  him  who  la 
now  your  majesty's  advocate,  as  that  wliieh 
had  nothing  in  it  which  could  bring  them  nil- 
der  an  V  guilt ;  and  yet  those  three  were  singled 
out  ol'  tlie  whole  number,  and  incapacitated^ 
besides  an  high  fine  and  long  impruonment, 
as  to  your  majesty  will  more  fully  appear  by 
another  paper. 

"  Sir  Patrick  Holme,  of  Polwortli.  btioff 
sent  by  the  shire  of  Berwick  to  complain  M 
some  illegal  proceedings,  and  t'^  («btain  a  leffil 
remedy  to  them,  which  he  did  only  in  Vbm 
common  form  of  law,  was  also  declared  un- 
capabie  of  public  tru9t,  besides  many  mcHitha 
imprisonment. 

*'  The  provost ofliLuIythgo  being complunad 
of  for  not  furnishing  bome  of  your  forces  witk 
baggage  horses,  was  called  beVore  the  council^ 
and  because  he  said  they  were  not  bound  m 
law  tu  furnish  horses  in  such  manner,  he.  was 
inimeiliately  declai-ed  incapable  of  public  troati 
and  was  both  fined  and  imprisoned.  i  . 

«'  There  are  also  tifty  of  the  town  of'dBfc 
Johnstons  incapacitated  u|>on  a  very  slig^ 
pretence,  so  that  its  very  iutpossible  for  them 
to  find  a  sutiicient  numncr  of  citizens  fiur  t||% 
magistracy  of  that  tovn« 


and  atkers.for  OJfn^I  3Tafvcr8ntionB, 


A.0.  I 


t!61 


wtiidj  iitruckas  machjfnotmore,  njainsthiro- 
*e]i'n»  nm^tcTf  than  against  Halloa  ;  yet  lie  pre- 
iiuiiu^i  biHopeontssaiid  iiigffuwty  woulih>rOfure 
him  favour.    Wbeu  Ilatton  came  from  Londop 


"  5.  Your  subjects  are  8oin dimes  upon 
fttight,  and  lonietimes  upon  na  groutuN  itti- 
jiriioncd,  and  olkn  kcjit  prisoners  many  niontlis 
and  jear«,  notliing  being  objccte<!  to  them,  and 
r  lire  I'eijiiirt'd  lo  enter  themselves  prUoiicTS ; 
which  is  contrary  to  law.  It  wiis  "m  die  former 
article  cx|iies*td,  that  many  of  tliesc  inrsons 
declttrod  incajiable  of  public  trnst,  did  ^Uo 
DulftT  iiiipri»otiiiient  I  and  besides  these  in- 
stances,  lituicnt^nt  general  Drunniiond  (whose 
eminent  loyaUy  aiul  t^rcM  sevtices  an;  well 
known  to  your  majtsty)  wasrequind  to  enter 
liini»elf  prisoner  in  tfie  cjstle  of  Dunbarton, 
where  lie  was  kept  one  year  and  a  bnlf ;  and 
vr^A  made  a  close  prisoner  for  iime  utontbs  of 
that  time,  anil  yet  notluniif  vias  evi>r  objected 
to  him  to  thii»  day  to  justify  that  u?^»iye. 

**  The  lord  Cardro^s  was  for  his  ladies^  keep* 
ihfif  two  conventicles  in  her  own  bouse  (at 
Mnich  lie  was  not  present)  fiocd  110/.  and 
hath  now  b4>cn  kept  prisoner  four  ycum  iti 
Ibe  castle  of  Kdinbur^,  wbcix?  he  still  remains ; 
ahlioui^U  he  hath  often  pftitioned  fur  bin  li< 
berty  ;  and  hW  Patrick  Holme  hath  been  now 
a  xeofiud  tmie  ahuo«t  one  year,  and  nothinf^  is 
yet  laid  to  hi6  charge. 

*^  licside:;  ttie^e  illegal  impri.*!oni»eiit^}  the 
oncers  of  your   fiiaje?jtie«  forces    frequently 
'carry  warrants   with  them  for  apprehending; 
persons  that  are  under  no  legal  censm^t    i**'*' 
'  luira  been  so  much  im  cited  lo  appear  ;  wbich 
I  hmth  put  maoy  of  your  subjects  an<ier  ((reat 
'  fan),  tspecuUty  upon  what  was  done  in  council 
tbfve  years  agr* :  ca|jtain  Carstair«  (a  man  now 
wdleDougli  Known  to  yaui-  majf&iv)  clid  in- 
IrapocM  Ktrktoim,  an  onted  mioitierf  into  his 
chamber  mt  Edmburgb,  and  did  viulentty  abuse 
I  him  ;    and    desi^cS  to  liavi;  extortetl  some 
I  jnaiiey  iiroin  btm :  the  noise  of  tliis  eo(uin§:  to 
tbeeanofone  Bailey,  bi-oiber-in-bw  to  the 
■aid  Kirkton,  be  came  to  llie  house  and  bearing" 
I  bim  cry   Murder,   murder,  force* I  open  the 
chamber  door,  where  he  found  his  brother-in- 
law  a4id  the  captain  ^plintf  ;  the  captain  pre« 
tended  to   have    a   warrant  o-^ainsl   Kirkton 
and  Uaity  desired  him  tofibew  it,  and  promised, 
that  all  oixHiicnce  should  be  ffiven  to  it  i    But 
Ibe  captain  refusing  to  do  it,  Kiiklon  was  res- 
cue<l,     Tbi»i  wa«  only  i!e1iv**niig^  a  man  from 
Ibehandiiof  a  roy.  '      *  naluro  *»tihi,'eth 

all  men  to  do  ;  esp* '  u  joyncd  with  bo  \ 

Tic^a  relation.     Tiie   i,ii>iim  compltiined  of 
tbii  to  the  council,  and  tli*.  lord  Halt  on  with 

others  were  apiKiiuttd  t  ■  -' n^^  tbe   wit- 

I  neaacs:    and  when  it  w;  licfore  the 

t-onr,<-il    the  duke  of  Ila;u..>  ...,  . .  ;  is  of  J^rcre- 
fri^ce  and  Kinkarden,  ihv.  lord  Coche- 
;  sir     An  I»i!^^ld      I'riLiiroM',     then 

kli0r<!  hat  the  rcjiort  of  the 

lemu  d  ;  but   fbrit   tiot  >rr- 

UlO^^    r  :  ■,      ■■.,,■.,■.,,  .^,  v,-/e 

VOJL  XL 


in  the  beq^inatDf^  of  July  ^  they  proceeded  very 
summarily  with  biui^  and  ur;^cd  him  to  depon«i 
as  the  rest  had  done ;  he  refused,  seiing  na  | 
man  is  bound  jurati  in  projtriam  iurpitudinem  1 

Carstares  did  not  shew  any  warrant,  nor  wa 
cloatbed  with  auv  public  chnmcter,  it  was  no  j 

"-  waa  ^ 

I«'"    lui>i  iiiiwi  iiJ  yj^\jy."'j  iiiai  iv^    •4Um    *\'-i'k.   'OOtf    % 

piisouer. 

"  Those  lonls  were  upon  that  so  tiBpre^cnted  I 
to  ynur  majesty,  that  by  the  duke  of  Luudcr-  1 
dale's?  procurement,  they  were  turned  out  of  1 
the  council,  and  all  couimnnd  of  t!ie  militia.? 
And  it  can  be  made  appear,  that  the  captaia 
had  at  tlmt  ttnic  no  warrant  at  all  against 
Kirktou,  but  procured  it  aiU?r  the  nolence  cjm- 
mittL*d  :  and  it  was  ante-dated  on   design  to  j 
serve  a  turn  at  that  time.     This  manner  oif  | 
prt<cc€*liugs  hath  ever  since  put  your  subjects 
under  H;id  apprehensions. 

**  There  is  one  particular  further  offered  (»  \ 
your  majesties  consideration,  concerning  their 
way  of  usinjj  pmoners. 

*"*  Tb ere  were  14  men  taken  at  a  field  coa- 
veatich',  who  without  being"  legtilly  convict  of] 
that  or  any  other  crimes,  were   secretly  and 
in  the  niixht  taken  out  of  prison  upon  a  ^vanaiil 
siy:ned  by  the  enrlc  of  Lynlyth)tyo,  and  the  lord 
Uattftn  and   Collioglon,  and  Were  dehvered  to 
cnfitain  Maytland,  who  had  been  pa^  to  th«  i 
duke  of  Laudenlitle,   but  was  then  a  Frencb 
officer,  and  was  making  his  levies  in  Scotland, 
and  were  carryed  over  to  the  service  of  tbtp  ( 
French  king  in  the  year  1616. 

«*  S.  The   council  hath   upon  many  ocea^ 
sion^f  proceeded  to  most  unreasonable  and  ar- 
bitrar}'   lines,  either  for  sbght  otlences,  or  for 
offences  where  the  fine  is  regulated  by  Jaw,  .1 
whu  h  they  have  never  ixmsidered,   when  tho 

{jersons  were  not  acceptable  to  them  :  so  tho 
oi  d  Cardross  was  fined  in  1, 11 U,  for  his  ladies 
keeping'  two  cotiTen tides  in  his  hou^  and 
cbristmng  a  child  liy  ao  outed  minister  without 
his  knowledge,  liie  provost  formerly  men- 
tionedy  and  Baily  with  many  more  Were  al^o 
fined  without  any  regard  to  law, 

^*  The  conned  Lath  at  several  times  proceed- 
ed to  the  taking  of  gentlemenii*  dwelling-bouset 
from  them,  and  putting  garrisons  in  them* 
which  in  time  of  jjeace  is  contrary  to  law.  lo*  ' 
the  year  75)  It  was  designed  against  twelve 
of  your  m^^esties  subjects,  and  was  put  In  cxe- 
ct  it  ion  in  the  houses  of  the  earl  of  Calendar, 
the  lord  Cardrosse,  the  lady  Lumsden,  Slq.  and 
was  again  attempted  In  the  year  78,  tlte 
houses  l)elonging  to  the  leirds  of  Cosnock, 
Bhigati,  and  fcowal,  and  were  posse^ned  by 
souidier^,  and  declared  garri^ouH,  TNor  did  it 
rest  there,  but  ortlern  were  i»ent  fmm  the  coun- 
cil, requiring  tl»e  countries  alx^ut  tbo^ohouscn, 
to  funuih  them  for  the  sunMii  i^^  u>r.  ynd  to 
vutipty  them  with   ni  <  try 

lolaw.     It  was  again  uck 

Holme  came  to  desin?  a  rttutxly  ;  ami  v  Jin- 
mon  juitioe  being  denied  hiiUf  he  tisei  a  k^^if 


34  CHARLES  IL    Proceedings  agaiiut  the  Earl  of  Lauderdale  •  [164 

the  rest,  that  he  might  knotr  what  tliey  bsd 
(Ie|ioneil  ai^ainst  hiin ;  but  craved  that  he  might 
prive  liis  juramenium  purgationis  that  he  waa 
free  uf  these  luisappl ications  which  the  fmup^CM 


163} 

w1:orc  the  case  may  he  criminal,  Dor  to  accuse 
hiinsi-H*;  hut  he  guvcinareprescntatiunof  the 
biate  of  the  Sliiit ;  they  refused  liim  a  heai'ing', 
or  a  si^ht  of  the  process,  or  the  testimonies  of 

pruteslatinu  in  the  ordinary  ferni  of  law,  and 
.  \t  as  thereupon  kept  for  manv  mouths  a  pri- 
soncr,  and  declared  incapable  of  all  publick 
trust,  '^c. 

**■  There  is  anotlier  particular,  which  because 
it  is  so  odious,  is  unwillingly  touched  :  yet  it 
ifi  necessary  to  inform  your  majesty  about  it ; 
for  thereby  it  will  appear,  that  the  duke  of 
Lauderdale  and  his  brollier  have  in  a  most  so- 
Icnm  manner  broken  the  publick  faith  that  was 
given  in  your  majesties  name. 

''  One  Mitchel  being  put  in  prison  upon 
great  suspicion  of  his  havine  attempted  to  n^ur- 
dor  the  late  arch -bishop  of  St  Andrews,  and 
there  being  no  evidence  against  him,  warrant 
was  givrn  by  tlie  duke  of  Lauderdale  (then 
3'our  majesties  commissioner)  and  your  coun- 
,  cil  to  promise  him  his  life  if  he  would  confess ; 
whereupon  he  did  confess,  and  yet  some  years 
after,  that  person,  who  indeed  deserved  many 
deaths,  if  there  had  hcen  any  other  evidence 
af^aiust  him,  was,  upon  that  confession,  con- 
v.'cted  of  the  crime,  and  the  duke  of  l<auder- 
dale  and  his  brother  being  put  to  it  by  him, 
did  swear,  that  they  never  gave  or  knew  of 
any  assurance  of  life  given  him  :  and  when  it 
was  objected,  that  the  promise  was  upon  record 
in  the  council  book's,  the  duke  of  Lauderdale 
did  in  open  court,  where  he  was  present  only 
as  a  witness,  and  so  ought  to  have  l)ecn  silent, 
threaten  them,  if  they  should  proceed  to  the 
examination  of  that  act  of  council,  which,  as 
he  then  said,  mifjht  infer  perjury  on  them  that 
swore  :  and  so  did  cut  off  the  proof  of  that  de- 
fence, wliich  had  been  admitted  by  the  court 
as  <,^ood  in  law,  and  sufficient  to  save  the  pri- 
soner, ifprovcd.  Thus  was  that  man  hanged 
upon  that  coiiifsbion  only,  though  the  promise 
that  drow  it  iVcni  him,  (loth  appear  upon  re- 
cord, and  c^n  be  pro\('d  by  good  and  clear 
evidcrn-c.  Antl  from  tliis  your  majesty  may 
jad;^* ,  ^^liat  cTtdit  may  be  j»iveu  to  such  men. 

*'  >V»'  do  not  at  p.-tsmt  enlarge  on  other 
j»arl!c-'ilars  tliough  of  great  importance;  such 
Its  inoL('.p<>lios,  s(  llingplac  rs  uf  honors,  lumi/ig 
men  of  known  int«>gnly  out  of  tlieir  imploy- 
int^nts,  to  which  they  nad  a  good  and  just 
right  during  their  lives  :  the  profits  of  one  of 
the  most  considerable  of  these,  being  se(]uestered 
for  i:ome  lime,  and  apply ed  for  the  dutchess  of 
I^uderdale's  use :  the  treating  about,  and  re- 
ceivin«,»"of  jrroat  bribes  by  the  duke  and  dutchess 
of  Lauderdale,  and  the  lord  Hatton,  and  par- 
ficularl}'  from  the  touns  of  £dinboroug[h,  Ab- 
berdeeu,  Lynlithgo,  and  many  others,  tor  pro- 
curing: from  your  majesty  warrants  for  illegal 
im))Ositinns  witliin  these  towns  :  the  manifest 
and  |)ublick  [KTverting  of  justice  in  the  session  : 
besides  the  most  signal  abuses  of  the  mint 
and  copper  coin,  that  are  most  grievous  to  all 
jour  subjects.  But  the  uumber  of  these  is  so 
fi^  *4  the  J  will  require  so  many  wit- 


nesses, to  be  brought  hither  for  proving  them, 
that  we  fear  it  would  too  much  trouble  your 
majesty  now  to  examine  them  all :  but  your 
majesty  shall  have  a  fidl  account  of  them  af- 
terwards. 

"  One  thing  is  humbly  offered  to  your  Bla- 
jesty,  as  the  root  of  these  and  many  other  oppres- 
sions, which  is,  that  the  method  of  governing 
that  kingdom  for  several  years  hath  been.  That 
the  lord  Hatton  and  his  adherents  irame  any 
letter  that  they  desire  from  vour  Majesty  to 
your  council,  and  send  it  to  the  duke  of  Lau- 
derdale, who  returns  it  signed  ;  and  this  is 
brought  to  the  council :  upon  which  if  at  any 
time  a  debate  ariseth  concerning  the  matter 
of  that  letter,  as  being  agdinst  or  with  law ; 
and  when  it  is  proposed,  that  a  representation 
of  that  should  be  made  to  your  Majesty  ;  then 
the  lord  Hatton  in  his  insolent  way,  <^ls  to 
have  it  put  to  the  question,  as  if  *it  were  a 
crime  to  have  any  warrant  either  debated  or 
represented  to  your  Majesty,  which  is  procured 
by  the  duke  of  Lauderdale  or  himself;  and 
this  is 


echoed  by  his  party,  and  by  this  i 
any  further  debating  is  stopped. 

*'  There  are  some  other  particulars  relating 
to  these  heads,  that  are  to  ne  offered  to  yonr 
l^lajesty  in  other  papers,  w  liich  are  not  added 
here,  lest  3'our  Majesty  iihouid  now  be  troubled 
with  too  long  a  paper.'' 

"  The  Impeachment  of  The  Bake  and  Dutekeu 
of  Lauderdale,  with  their  brother  my  Ltrd 
ilatton,  presented  to  hit  Majtsty  by  ike 
City  of  Edinburgh.  The  matters  affmci 
particularly  relating  to  the  town  qfJSdim' 
burghf  humbly  offered  for  your  Majestm 
information.  Before  thematteroffaethe 
spoken  to,  it  is  necessary  that  your  MttftUw 
be  informed  of  one  thing  upon  which  tkm 
whole  affair  Itath  moved. 

*»  The  citv  of  Edinburgh  had  at  several  times 
given  con^idei-able  sums  of  money  to  the  duke- 
of  Lauderdale,  amounting  to  upward  of  twelft 
tliousand  pounds  sterling,  and  tne  lord  HattOQ, 
brother  to  the  said  duke,  being  inraged  by  tint 
their  former  practice,  and  hein^  arrived  to 
great  height  and  influence  in  the  administralMia 
uf  your  Majesties  affairs  in  Scotland,  did  thera- 
upon  resolve  on  a  design  of  getting  nHoiiej 
for  himself  also  from  them,  as  will  appear  to 
your  Majesty  by  the  following  narration  ;  bat 
the  magistrates  at  that  time,  and  such  others 
as  had  then  the  principal  influence  in  the  de* 
ministration  of  affairs  m  that  town,  being  ho- 
nest men  of  good  fortunes,  and  not  to  be 
brought  to  comply  with  his  design^he  be» 
thoug^ht  himself  of  all  ways  to  vex  them  ;  end 
knowing  they  did  much  value  the  prosperity 
of  the  town,  be  thou^it  that  the  first  meeae 
for  promoting  that  ms  design,  was  to  have 
them  threatened  with  removing  your  Miyealial  - 


165]  9ni  alheti,  for  Official  ^Mvfrsatlcns, 

prohatio  loaded  him  with.  His  i»bjecli*ms 
a|;aiitst  sir  John  Falcoiier-s  df^poninf^  against 
hirn  ar<j  1.  InimtcUia  2.  lie  is  comciui 
€rmini$que  sticiu$,    3.  lie  depojit^!;  to  liberat€ 


A.  D,   1682/ 


flS 


,  ^uhliqttc  Jttflicahira  from  iliat  city  tr>8tcrlin, 
and  pers evaded  hU  bi-olht^r  the  diiUe  of  Loiiiler- 
dtkle  to  move  ynm  Majesty  to  that  purpose  j 
but  belo^  disappoiril<^d  of  that  firoject  by  your 
Majesties  royal  wisdom,  your  Slajcsiy  looking" 
tipOD  St  as  IT  it  were  to  declare  to  t!ie  woild 
tnat  yon  were  jealous  of  so  great  a  part  of  ihat 
jour  ancienl  kingdom,  he  br^lhoui^lit  himself 
of  new  ways  to  accomplish  his  dcsljijn,  f\i\r 
which  he  judged  nolhiup^  so  proper  and  cflec- 
tital,  as  to  distuHithem  in  the  choice  of  i!ieir 

,iiiag:islrates  and  tovva-counsel ;  and  hy  nil 
meaos  possible  to  get  some  of  bUown  cbu'siiiiM;, 
lit  for  his  own  ends,  brou^htiu  to  the  admmis- 
tration  of  the  affairs  of  that  crty.  Tti  order  to 
which,  being^  impatient  of  any  longer  duhiy, 
he  laid  bold  of  what  follows,  beings  the  first  nc- 

j  cosion  tjiat  offered,  though  a  veiy  frivolous 

'  one. 

**  At  Michaelmas  1074,  The  said  city  of  Edin- 
burgh beinsf  to  go  about  the  election  of  their 
magistrates  for  the  ensuing  year,  there  was 
procured  a  letter  from  your  majesly  to  your 
jtrivy  CMunsel  commanding  theni  to  tbibid  the 
iiiajjist rales  and  town  counsel  to  proceed  in 
their  elections,  !)iit  to  continue  the  magistrates 
thai  then  were,  till  yrwir  Majcsty^sfiu-ther 
plcflsure  should  be  knovin  ;  tbV  reason  su^- 

I  Ifcsted  to  your  majpsty  for  it,  was  taken  from 
this  circamstancej  Tfiat  the  elKction  ou^ht  to 
he  made  upon  the  Tuisdny  affcr  Michaelmas, 
sud  (it  happening  this  year  that  Michaelmas 
fbll  to  be  on  a  Tuesday^  they  were  resolved  to 
proceed  to  their  etecti<uls  w^Kyn  Michaelmasj- 
day. 

**  Though  this  was  a  very  saiall  maUer,  and 
upon  Tcry  g'oinl  and  prudent  ronniderations 
resolved,  as  will  afterwnrd  appear,  yet  was 
it  represented  la  your  majesty  &£  a  factious  de- 
iriy^,  and  an  innoratioo  of  dangerous  conse- 
f|uence,  tending'  to  create  and  maiotairi  facliori 
in  that  city,  contrary  to  your  inajpsties  service. 
Your  majes'lies  foresaid   letter  Ix-in;^  inti mated 

*  to  the  magistrates  and  town  counsel,  they  did 
Immediately  give  e%act  ohefhcnce  to  the  same. 

r  •*  They  did  also  represent  to  your  majebties 
privy  council,  the  rights  thai  ihtry  had  lor 
c busing  their  own  magistrales,  which  httd 
lieeo  granted  to  them  by  many  of  your  majcs* 
ties  royal  aurcstors,  and  confirmed  by  many 
jiarlinments  ;  by  vertue  of  which  they  humbly 
conceived:  they  ought  to  he  suffered  to  pmcceiJ 
iu   iheir  **le<"tjons. 

**  They  did  also  represent  to  your  majesties 
imvy  council,  the  reasons  which  had  moved 
theifi  to  resolve  of  making  their  elections  on 
the  said  Ttiesdny,  being  Michaelmas  day, 
whicti  in  short  were,  that  liy  their  constitution 
they  were  obhj^t!<l  upon  the  Friday  bvfoie  Mi- 
chiielmns,  to  make  if^e  list  out  of  which  the  Ma- 
gistnttcH  arc  to  he  chosen  ;  aftor  tin?  doing  of 
whicli  there  is  a  surcease  and  vut::tUon  of  all 


and  exoner  himself.     4t  To  elicit  ilii»  deposi-  ;  i 
lion  from  him  ae^ainst  Halton,  tht^re  were  pro-  * 
mi»es  of  personal  favours  to  hiinself ;  which  ii  , 
the  highest  degree  of  bribery  and  corruption. 


ordinary  courts  of  judicature  within  the  l^mTi, 
and  the  whole  time  is  spent  by  the  commuu 
j>eople  and  tradesmen  of  ibc  town,  in  rioiiu^  .1 
and  drinking,  uotil  the  elections  lie  finished^  \  { 
which  in  I  his  case  would  have  been  twelve  ' 
ilays  ;  which  they  did  in  prudence  think  they  , 
ought  lo  shorten,  not  conceiving  it  eontrarv  iit  ^ 
the  least  to  the  established  rules  of  their  elec-j 
tion,  , 

*'  On  these  things  ihey  did  humbly  cnivi* 
your  Majesties  privy  council  would  be  pleased 
io  represent  lo your'majesty,  that  thereby  they 
might  be  freed  from  theauRplcion  of  any  fac- 
tious design,  with  whicli  they  were  charged 
by  the  said  letter. 
'  **  This  being,  through  the  influence  of  the^ 
lord  Hatton,  refused  by  the  jtrivy  council,  they 
dispatched  a  gentleman  lo  the.  dtike  of  Lauder- 
dale, with  letters  and  instructions  full  of  res- 
pect and  subniission  to  his  g^race. 

"  The  gentleman   at  bis  first  arrival  found  ^ J 
duke   Lauderdale   very  kind,  and  was  mad«  , 
believe  he  should  he  quickly  dispatched  with  ^ 
answers  according  to  his  desire  ;  hut   soma  ^ 
delays  having  fallen  in,   the  duke  of  Lauder^ 
dale  felt  likewise  upon  thoughts  of  getting  mo- 
ney tVoiD   ttie  tov^n   upon  ihls  occaiiion,  audi 
therefore  pretending  still  more  and  more  kind- 
niina  to   the  said  gentleman  )  hu  did  first  by ' 
some  insiQuatiims  let  fall  to  hito  his  expecta-  ^ 
tiou,  and  at  last  flatly  asked  him  if  he  hati  not' 
brought  a    heavy   purse    with    him  ;    whicli 
when  he  understood  he  was  not  to  expect,  ho  .1 
changed  his  method,  and  grew  haishcr  ;  and ^  j 
having  dctaincn!  him  live  or  six  weeks*,   he  th^  ^ 
said  duke  entered  into  consullallon  with  his  old 
friend  sir  Andrew  Ramsey,  how  to  order  the^l 
affair.     By  his  advice  he  did  write  a  ktter  and  /j 
sent   proposals  to  the   said   town,  That  they^f 
should  give    bond    and     security,     that    tba 
to\f  nsmen  should  lire  regularly  us  to  all  mal- 
ters  ecclesiastical  in  the  largest  extent,  as  thO|l 
same  is  determined  by  the  late  acts  of  parlia-  ^ 
ment ;  and  to  keep  the  town  free  of  all  sorts ^ 
of  tumults,  either  of  man  or  woiuau :  Judging . 
that  this  was  impossible  for  them  lo  perform,  J 
and  uofavoui-able  to  attempt,  and  that  there- 
fore it  would  oblige  them  to  make  offera  of. 
money. 

**  This  letter  was  all  the  gentleman  could 
obtain,  and  having  gone  back  to  Scotland  and 
delivereil  it  to  the  magistrates,  they  were  so 
far  fi"ora  lieiug  carried  in  the  design,"tbat  they.] 
were  glad  of  that  ojiportunity  to  witness  their'] 
zeal  to  serve  your  majesty  ;  for  they  did  very 
heartily  comply  with  what  was  proposed  con-  * 
ceruing  the  bonds  and   securities  iteomnded;.  j 
and  immediately   urged  that  your    majesties' 
officers  and  lawyers  would  cause  draw  sucU  1 
bonds  and  securities  as  was  fit  for  the  purpose  ; 
uffenng  good  security  for  great  summs  ofu 
ney  for  lie  performance.     But  thii  ll^i<.  Wvcq 


16T] 


34  CHARLES  IL    PracudingM  agaimt  ike  Earl  of  Lauderdale    [  IQS 


Tbea  he  gave  in  bis  defences  why  he  was  not 
liable.  1.  Because  be  had  exom*ratioris  and 
discbarg^es  from  his  Majesty.  3.  Because  he 
was  pardoned  and  included  in  the  general  act 


the  tbinff  truly  intended,  their  ready  coni(>li- 
ance  with  it,  set  them  yet  farther  of!  from  their 
desired  settlement,  an*!  served  for  no  other  in- 
tent than  to  cause  the  lord  Hatton  to  double 
his  diligence  to  find  out  new  means  to  mollest 
them  ;  to  which  end  it  was  alledged  by  him, 
that  tliey  hud  of  old  forfeited  Iheir  privileges 
and  liberties  by  some  great  misdemeanour,  aud 
that  therefore  they  had  not  right  to  cbuse  their 
own  rj.kgistrates,  for  which  he  would  needs 
have  tliL'ir  ni-ords  searched  ;  and  accenliugly 
they  thL-mse!i  es,  with  their  books  and  reconls, 
were  in  a  most  unusual  manner  brought  oitcn 
before  him  •mm\  his  friends,  though  they  had 
not  authority  for  it,  to  the  great  di&turbance 
and  aanoyuuce  of  the  citizens,  by  beuig  abun- 
dautly  j<'J;ous  of  their  liberties,  were  with  uo 
smallcare  kept  within  the  due  bounds  of  mo- 
deration, by  the  loyalty  and  vigilancy  of  their 
inagi>traie9. 

<*  Thcv  the  said  magistrates,  finding  how 
they  were  used  at  home  by  the  lord  Hatton,  did 
again  appiv  themselves  to*^the  duke  of  [jaudcr- 
dale,  both  by  private  lettcra  to  the  duke  of  Luu- 
derd.ilu  aiidhLs  duchess,  frum  some  of  the  most 
eminent  of  them,  full  of  assurances  of  particu- 
lar i-espcct  to  their  graces,  and  by  a  public  let- 
ter to  him  from  the  whole  town  council,  ofFer- 
ing  bond  and  8ccurity  to  him  in  tlie  terms  pro- 
posed by  his  fore-mentioned  letter.  But  this 
could  not  prevail,  it  being  c4)jected  to  tliem, 
from  some  frivolous  things  the  lord  Hatton  had 
scraped  together  out  of  their  old  records,  that 
they  bad  lost  their  liberties,  and  that  the  riglu 
of  ch  using  their  magistrates  did  no  more  belong 
to  them. 

**  Then  did  they  produce  their  charters,  and 
did  convincingly  clear  all  mistakes,  and  evi- 
dently make  appear  that  the  right  of  chuulug 
their  own  magistrates  did  remain  to  tlicm  un- 
doubtedly aud'intirely. 

*•  All  tliesc  things  being  cleared  and  open, 
they  expected  to  be  restored  to  the  free  exer- 
cise of  tlicir  election  in  their  accustomed  man- 
ner, 'riiey  were  still  kept  off  wiih  delays,  ru- 
lil  the  lord  Ilntton,  in  pursuance  of  his  tJebigo, 
fell  a  praeti^ing  with  some  few  of  tliemseh  es, 
wha  did  undertalLe  witii  his  assistance*  to  get 
such  eleote<I  as  were  fit  for  his  ends ;  where- 
upon he  writes  to  his  brother  the  duke  of  Lau- 
derdale to  move  your  niajesly  for  a  letter,  and 
accordingly  the  fetter  was  procured  from  your 
majesty  u|>ou  the  7lh  of  August  l(y7o ;  wherein 
your  majesty,  all.'T  rcciling  your  former  orders 
in  that  affair,  did  declare,  that  you  were  well 
inforuu'd  t-f  their  obt^licneo  to  your  commands, 
and  of  their  dutiful  carriage  in  3rour  concerns  ; 
and  therefore  ordained  them,  the  next  day  afcer 
the  receipt  of  the  letter,  to  convcuc  thcir*wholc 
council,  ufier  their  accustotiticd  manuer,  and 
oat  of  the  lias  already  made,  to  elect  the  lord 
ilies,  and  oSiher  officers. 


of  indemnity  past  in  1679. — ^Tbis  was  i 
as  a  decliuing  of  them;  and  they  repNellcd 
them  hoc  loco^  seeing  they  could  not  uindcr 
them  to  enquure  and  proceedper  modum  inquid- 

«  According  to  wliich  letter,  thay  ^d  the 
next  day  proved  to  theur  elections,  but  instead 
of  those  whom  the  lord  Hatton  expected  they 
would  have  chosen,  they  did  elect  some  men  « 
good  fortunes  and  integrity,  not  at  all  fit  for  hia 
purpose  (these  who  had  eng^aged  to  him  not 
oeiog  men  of  that  esteem  or  inflheuce  as  to  be 
able  to  carry  his  design  as  they  had  under- 
taken). 

*'  The  new  magistrates  and  council,  did  in- 
mediately  af\er  their  election,  acquaint  yoor 
majet*ty  with  their  procedure,  and  gave  yonc 
mayesty  great  acknowledgments  and  assuraucea 
of  their  care  of  the  peace  of  the  town,  and  oC 
your  majesty's  service  in  all  natters,  both  ec* 
clesiastical  and  civil. 

"  The  said  lord  Hatton  hein^  ezoeediiigly 
enraged  at  tliis  act  of  theirs,  did  by  advice  of 
sir  George  Mackynge,  now  yoiir  majesty's  ad- 
vocate, send  a  letter  to  the  duke  of  Laudmlale ; 
to  which  he  procured  your  majesty's  hand 
upon  the  25th  of  the  same  month  of  Augos^ 
by  which  your  majesty  ordered  your  privy 
council  to  intimate  to  the  magistrates  and  town 
council,  that  it  was  your  royal  jdeasure  that 
there  sliould  be  turned  out  of  the  town  ooancil 
and  deciared  incapable  of  any  public  trust  in 
the  said  town,  twelve*  of  the  most  eminent  of 
the  same  men  with  whom  your,  majesty  had 
expressed  yourself  so  well  pleased,  an/i  whose 
actings  your  niajesty  had  approved,  hy  your 
letter  of  the  7th  of  the  said  mouth. 

'*  This  was  accordingly  executed  by  the 
privy  ci  uncil,  without  ever  so  much  as  calling 
before  them  the  said  persons,  tliough  great 
crimes  were  laid  to  their  charge,  as  being  fac- 
tious pei-sons,  and  misre])ic*sentin«j|'  your  oioi- 
jesty's  proceedings,  without  mentioning  any 
particular  fact  of  theirs  w  hich  could  import  any 
such  crime.  And  though  the)'  be  threateaed 
by  the  said  letter  to  be  pursued  for  these  gnat 
crimes,  and  that  your  majesty's  advocate  is 
commanded  in  the  same  to  nisist  against  thauiii 
yet  could  they  never  obtain  from  your  maipi-  < 
ty's  privy  council  that  they  shoultlbc  triedmr 
these  things,  though  by  a  petition  signed  by 
tbc  whole  twelve,  they  did  represent  tlie  great 
prejudice  tliey  sustained  both  in  their  reputa- 
tion aud  trade,  by  being  kept  under  such 
tbrcalcniugs ;  and>  therefore  did  humbly  oflsr 
themselves  to  the  strictest  and  severest  tiiaL 
To  which  petition  they  never  received  any  ai^ 
swer. 

"  To  make  appear  to  your  mijesty 

tliese  things  were  done  for  private  ana  a 

trous  designs,  and  not  upon  account  of  tbaill 
affocteduess,  or  factious  dispositions  of  the  jsea, 
as  was  pretended:  your  majesty  is  hanUK 
prayed  to  take  notice  of  these  particolan  fiC 
lowing : 

<'  First,  There  are  three  of  the  most 
deraUe  of  these  very  penNuui  n^  hadil 


WS] 


tind^iertf/pr  Official  Mahirmikm, 


Tken  being  soniewtmt  tlifiidcut  of  Uie 
1lLiti{j*s  luJTCicJtte,  on  the  pretooce  li<5  was  8oui«^- 
limea  ottt  of  tv^n,  tliey  cuu^oiued  »ir  Futrick 
Hume  advoc^iie  to  hiuit  wliu  Hiiisa^i^orn  enemy 

eliftrt^Cil  wilii  so  (^reat  crimes,  admitted  since 
tlmt  time,  hy  brilun^'  llie  thicliess  of  Lauder- 
lUtc,  iutoauu&t  iji  youi'  majesty's  affairs  iu 
HcoLl^nd,  more  emiit^nt  aiul  considerable  thuu 
iiy  Iryst  ttie  toivu  of  Cdiubur^ti  can  coufi^r, 
itie  paying  otf  your  lutije^ty'ii  foroeiv  moA. 
^nuioj,^  in  yonr  uiujc-sty 's  excise » 
♦»  NcL'oudly,  Na  siiufier  were  these  twelve 
ea  turned  out  ol'  the  tov^n  council,  but  atier 
limay  ip-eai  aiMl  cssenu.ii  infonaaliiie.^  (with 
tbe  reciuU  of.  which  it  v*  ncedlejis  to  trouble 
jottT  mjijcsty)  tl**y  lUx-li'd  lor  luagistratew 
ineti  of  no  ri*|»ijUation,  cither  tor  [nu-ts,  eslaiet  or 
JiOQcfitv :  mui  though  thest:  bonds  and  secun- 
lias,  which  had  been  demamied  from  ih«  olhi^r«, 
and  ctin^eiUeiUto^  by  theiD>  was  furtnerl}  prt  • 
lijjidcd  to  he  of  grtat  iiiiporl.ioi^  Iw  your  ma- 
j^y^i»  jjcr\ice,  yet  they  were  nut  no  ntncU  as 
omx;  dernimdcd,  k'ith<:r  oy  the  duke  ol*  Lawkr* 
dak?!  or  l\w  lord  Haiton,  troai  Iheia  men  who 
were  now  ehoacfi. 

*♦  Thirdly,  These  new  magistnles  were  not 
long  io  theit  seats,  w  hen  otf  comes  the  luask, 
HJuTtbtf  trtic  desi^  of  i^etting  money  appears. 
For  by  an  act  of  3ie  town  council  tht^re  ii;  about 
5,000?.  ^tefhug*  diHfiosed  on  auiongst  tlieir 
nameless  friends,  whidi  were  the  duke  of  Lou- 
dL'rdair^  tlic  lord  Hatton,  and  some  other  of 
Ihuir  frienih.  A  ^reiA  sum  tn  be  got  from  that 
«Mty,  con&idcrtn^  tliat  the  duke  oi  Lauderdile 
tio^l  {Tui  bttons  thai  about  Xt^OOQL  slerlio^ 
from  ihcni. 

'*  The  duchoKS  of  I^ii<!erilalef  did  also  since 
that  time  eutltavouf  Ui  \fiti  more  moni^y  froio 
I  w  raih  threaieu  the 
tor  DoC  i^iviiM^  htr  a 
i       11       11  the  good  sho  s«id 
liiMiK  M. '  .V"ujut^  the  fa%ours 
: h  .M  Avr,  tuau  been  pleased  to 
I,   I ,  <Im   L'  hy  hertitilf. 

[  j>our  towQ  becA  abused, 
f<  >  lo^  magtstratea  witliout 

«  iL^e,  ia  a  titiMi  wl|«ii  the 

'  iienfiods  10 

lit  .       ..■  liv  and  ca^ 

[laciU  lu  i>uw  your  ni4jw»ly," 

Iti  tbe  **  Aecmmt  of  y^otland'^  6ricvances 
by  fwBwm  M'  the  duk«?  of  Lauderdale's  Minis- 
trv"  iiisf  rtP'f  \u  ilir-  <'  Siiit,-  Ti-ids"  (privately 
J  harles  the  Sc- 

-        169-^)  p.  '?i>0. 

MT^t  •*""•'■  ^'-"  i^smtje  is,  tli«  '  corrupurin 
'*4fe/  IV hereof  iny   lord 
w.    LaiMiordale'n  brother  tf 
Ibi*  mmigimmik  wu  gvoundcd  m  tlie 
tnveNiJ  itairHiUr  of  tb«   pg^lg ;   iKJba  bare 
f  v«#rftl  ymm^  tW  ilie 

^  -  "T  coiu  ia  aiMisiMy  dimipiiinit, 

both  m  Ai4i  H«i|(bt  oodrAiitMMi  to  liiii  noiion'it 


They 


to  IlHiton;  thii disflatUfled Ui« advoCAt^. 
frame  the  report  niiliout  allowing'  '  < 
sight  of  it;    luid  sent  rerihamltli  \ 

With  It  to  London ;    and  though  the  duke  of 


add  to  the  resentmenti  that  tlie  Kante  tofd 
itattoti  havini;  some  years  a^o  tiUed  the  coun- 
trey  with  a  !i^!  '  i  ^  coiu^  without  ohs^^rv- 
in;4  either  the  *\  '  the  weight  and  valtio 

pix^ifiliLd,  vvu.,  ii.  . .  ,i,,t  it!a^  hv  --i-  )•  trl  Laub- 
dirdftlf's  mciuis  secured  and  ud  r  it 

i*  iiJao  rvrn.  ni1k*M^-l,  tlwit  thi  :„....  .;;  enables 
luua  to  t  aion  of  our  iiitvcr  coia,  th« 

ftmcli  dii  I  ^  J  d  the  LeggdollorSf  usually 
imi*orted  by  our  merehanti^i  and  current 
amonyfut  «»  at  ACt^  per  picce»  were  cryei! 
down  by  tbe  duke  of  Laudc4*dAle'«  procurt- 
ment  to  56(/.  for  no  better  reason  known,  than 
that  tiicy  mi^lit  be  brought  ui  lor  bullion  to  th<f 
3Imt-hou9efor  his  brother's  benefit :  but  though « 
tliat  uU  demanded  in  |iarliament  about  thiit 
mitUY  was,  that  there  might  be  an  exaiMii- 
nolioa  of  the  coin  appoiatied,  and  an  accounl 
i^ivcu  ol  liie  bullion  which  hath  been  loi^  IM|^- 
Heted  \  yet  tbe  nu^monal  given  in  far  that 
el}«ctwaa  Qol  regarded:  it  is  true  that  my 
lord  Lftuderdale  after  the  I>eceniber  adjourn- 
ment of  thi»  parliament,  did  move  hin  majesty 
to  write  n  kftter,  and  thereupon  bring  the  bum« 
vi^%H  to  a  tryoj  Ldbre  the  eooncil  %  but  iu  a 
manner  m  partial^  that  I  profcv  it  is  my  a«l- 
mii-ation  how  iiny  man  $iioukl  have  a  ivinUl 
deuce  Ktmn^  ennuj^h  for  such  pructice$. 
sidiject  of  our  complaint  in  the  Ati»ck  of  our 
current  mony,  and  all  appointvd  by  his  loa- 
jestiea  h*ilLT,  is  that  there  shouUl  be  a  try  at 
made  iij^ofi  tile  e»!iay  boxe^  and  the  piefee 
thti  lined:   1  shall  not  Kay,  that  the 

ov*  I  tiof  hath   been  altegHbiT  in  nijr 

lord  4JU10HI  H  „wt,  ywmer  and  Iruiit  theaf*  yeap» 
hyt*tt«l»,  y«i  so  certain  it  i«,  that  tXm  box  or 
|iixie  hatb  been  of  late  ae  greatly  n^kcitdi 
that  one  of  mv  lorda  nonmiimoiieni  fl^da  ap» 
^utad  for  the  exatnen,  eoeld  oot  forbear  to 
say,  •  Tliat  they  were  niet  to  see  whether  the 
'  oScerskei  tlii:  JUint  were  ae  iBuch  IbiiWae 
'  tbey  west  suape^ed  to  ha  knareat*  but  not* 
withstanding^  tbiti  tbe  tryal  goes  on,  and  mora- 
o%  er  the  pieces  are  not  brought  to  the  esaay 
sercniily,  but  the  whole  (wiili  what  mixture  of 
finer  pieces  coined  and  conveyed  in  on  purpose 
to  compense  the  bascc  who  can  tell  P)  is  melted 
down  together  in  one  mass,  and  thereur^in  tbe 
easay  made,  and  the  report  thereof  with  some 
wraall  hrigots  sent  up  to  the  king  \  which, 
pnjfing  (10  be  sure)  according  to  ihr  dp*ig:0( 
r  the  confrivance,   his  m^esty  v\    '  *ci 

days  M»ndH  down  a  second   ^  m 

'.viiuiril,js|niilytag  htssaliafiMtieii,  »tiu  vmung 
UaCtiHi.anS.  i4t  real  oi'  tie  aftam  to  {w  ex^ 
oikemied  :  bnt  wben  this  letter  is  fead,  it  is  op. 
po«ied  Oiat  tbe  gnevaooe  of  the  l^lint  had  been 
I  lublf^I  iti  u»rh :^ in. «nt,  where  the  tryal  sb^ 
t    his  lOiyttiM  fin 
i%la>Neiiia4^  aftte 
tllf«r  tall^6ed  er 
c  a  iprtMittd  af  ntaaa  li' 


Oi  CHARLES  ir.     Proceedings  against  the  Earl ef  Lauderdale    [17f 

and  put  a  stop  to  the  coinage  till  farther  order  S 
aod  ordaioed  his  adrocate  to  insist  against  them 
either  criminally  or  civilly  before  the  council,  as 
he  saw  just.  And  now  since  the  King  has  ordered 
them  tu  be  pursued  beibre  the  session  for  restitii  • 
tiou,  of  what  tliey  had  intromitted  with  more  than 
they  had  warrant  to  coin,  Halton,  on  the  newi 
of,  his  brother  the  duke's  death,  parted  that 
same  day  fur  London  that  his  sentence  was  in  - 
timate ;  and  a  committee  was  named  to  go  and 
close  up  the  Mint- house,  and  seal  all. 

November  7, 1682.  . 

"  At  Privy  Council,  his  Majesty's  Letter 
was  read  aueot  the  officers  of  the  Mint,  bear- 
ing, that  where  he  had  formerly  orderered  them 
to  oe  pursued  for  their  malversations  before  the 
Privy  Council,  or  the  justice  court ;  now  he 
had  altered  his  puqiose,  and  ordained  his  trea- 
surer and  advocate,  to  insist  against  them,  before 
the  lords  of  session  ;  and  in  regard  John  Falco- 
ner, late  warden  of  the  Mint,  was  omitted  iathe 
former  order ;  and  yet  from  the  report,  it  appear- 
ed, that  he  was  as  guilty  of  malversations  as 
the  rest ;  therefore  he  ordained  him  also  to  be 
pursued  with  tlie  rest. — John  Falconer,  on  the 
news  of  it,  died  suddenly  of  crevc'tenr  at  Uii. 
house  of  Phesdo.  And  on  the  S4th  November 
1682,  the  treasurer  caused  put  up  the  ^ifl  of  his 
moveable  escheat,  upou  a  report  of  his  having 
bexnfelo  de  se,  and  g'lUed  it  to  lingh  WaUace, 
for  his  Majesty's  behoof. 

January  19,  20,  (J'C*  1683. 

His  majest}''s  advocate  against  the  enri  of 
Lauderdale,  lategcueral  of  the  Mint,  sir  John 
Falconer  warden,  and  the  officers  of  ibe  Blint. 
To  the  first  article  of  the  summons,  bearing, 
that  they  were  liable  to  rcfound  the  quantities 
of  the  copper  coin  wherein  they  had  exceeded 
the  warrants  his  majesty  had  given  them  for 
coining  turners.  Answered,  They  could  not  be 
made  accountablcfor  this  excess,  because  his  ma- 
jesty not  only  by  two  exonerations  produced,  but 
also  by  the  general  indemnity  in  August  1679^' 
had  discharged  and  pardoned  the  same ; 
neither  could  the  exonerations  be  termed  suIk 
repiitious  or  obreptitious  ;  and  that  in  law  all 
such  writes  and  rescripts  do  tacitely  bear  thie 
clause  in  their  bosom,  *  si  preces  veritate  nitan- 
*■  tur ;'  for  though  the  doctors  make  a  great- 
noise  of  the  efficacy  of  that  condition,  '  si  pre- 
'  CCS  veritate  nitantur,'  yet  they  teach  us  that 
any  of  the  following  clauses  take  it  off,  tis. 
either  to  insert  in  the  write  the  words  *•  mota 
*  proprio,  ex  certa  scientia,  ex  auimo  deliberato,' 
or  *•  ex  plenitudine  potestatis  ;*  or  even  the  ge^ 
minatio  actuum  do  evacuate  it ;  and  with  us, 
by  our  style  and  practice,  the  docqueting  of 
writes  to  pass  bis  majesty's  hand,  the  passing 
them  through  many  unices  and  seals,  the 
presenting  tnem  to  sundry  courts  and  indi- 
catures,  the  recording  thein  in  their  books  or 
registers,  the  obtaining  declarators  upon  some 
of  them,  are  far  greater  checks  and  controuls, 
and  more  fit  to  purge  and  obviate  fraud  oi*- 
obreption  then  these  alore  meiflioiied  inventioMbS  - 


I71j 

York  had  promised  to  Halton  tliat  no  deter-  i 
raination  should  follow  on  it,  till  he  were  beard 
bcfurc  his  Majesty;  y^H  a  Scots  Council  is  in- 
stantly called,  who  on  reading  the  said  reiiort 
of  the  coniinissiou  fly  very  high,  as  they  had 
l>ccn  tune«l,  (Halton  not  iVing  yet  gone  up), 
and  procure  a  letter  from  his  Majesty  depriving 
him  of  all  his  places.  Halton,  to  preVent  all  ha- 
zard from  the  extremity  of  their  malice,  fomi- 
ctl  an  ample  remission  of  colonel  Lock  hart's 
and  his  brother  the  duke  of  Lauderdale's  cxon- 
erution ;  but  the  duke  of  York  said  there  was 
no  present  necessity  for  the  passing  of  it  by 
his  Majesty. 

August  :i\j  16^2. 

"  At  Privy  Council,  his  Majesty's  letter  was 
read,  against  my  lord  Halton,  and  the  other  offi- 
cers of  the  33int,  bearing,  that  he  had  considered 
tlic  report  of  the  commissiop  named  by  him  to 
try  the  case  of  his  Scots  Alint,  with  the  advice 
of  hh  Scots  council  at  London,  and  found  that 
th;;y  had  malversed  grossly  in  tlieir  trusts; 
and  therefore  suspended  and  deprived  them  all; 

Mint  officei*s  so  long  as  it  was  manifest,  that 
almost  the  whole  ot  the  current -coin  is  defec- 
tive and  debased  ;  and  lastly,  there  vras  offered 
a  bagg  of  uiony  lately  received  out  of  the 
3Jint  office,  scaled  with  tlie  officers  seals, 
which  they  could  not  but  still  acknowledge, 
and  it  was  desired  that  there  might  be  a  tryal 
made  on  the  species  therein  contained.  Not- 
withstanding all  which,  my  lord  commissioner 
and  the  plurality  of  the  council  proceed  and 
vote  an  exoneration  conform  to  his  majesties 
last  letter.  Now  is  not  this  a  noble  way  of  re- 
dressing grievances,  to  purge  the  author  and 
leave  the  thing  untouched  ?  Nay  to  make  the 
greatest  aggravation  that  can  be  of  his  felling, 
viz.  The  corrupting  or  frustrating  of  the 
chequer  tiie  lK>st  ground  of  his  clearing,  and 
all  this  contrary  to  the  reclaiming  evidence  of 
almost  as  many  witnesses  as  there  are  pieces  of 
his  maji.stii's  coin  ininte<l  in  Scotland  ;  it  being 
ct^iiain  that  amongst  hundreds  that  have  been 
(rycd,  very  few  iiave  been  reported  to  be 
standard." 

And  under  the  head  of  the  eii^hth  grievance, 
^vhieh  is  '  The  mal-ad ministration  and  profu- 
sion of  his  majesty's  revenue*  it  is  said  "  My 
lord  lliitlcin  hiith  got  in  donatives  to  the  value 
of  I  ;>,nO()/.  stti  ling ;  and  hath  moreover  yearly 
1,19(;/.  sterling:  beside  ho  hath  the  profits  of 
the  Mint  and  liullion  which  last  did  render  in 
king  James's  time,  1,000  marks  Scots  weekly, 
amounting  yearly  to  2,500/.  sterling." 

It  may  here  be  noticed  that  Koger  North 
(•ivcs  hii^h  praise  to  the  duke  of  Lauderdale  for 
his  ^^oveniment  of  Scotland.  **  It  is  well 
known"  says  he,  '*  that  by  the  prudent  con- 
ituct  of  the  duke  of  Lauderdale,  Scotland  was 
iu  a  {Misturc  not  only  of  safety  but  (if  needed) 
i»f  giving  assistance  to  the  king.  No  barm 
could  get  in  or  out  there  while  he  was  commis- 
sionc^r."    Ezamen.  part  1,  chap.  3.  sect.  90. 


r 


anit)(kert,Jitr  O^cial  Malveritttiont, 


173| 

vf  Uie  dodors;  and  as  Ibis  proven  t|jc  vnll- 
dilv  of  tUe  exotunilionH,  ^o  the  indcmuily 
CfrtAini^  cut*  iirt'  ihi»  pniiiUtt  :  Fcr  ttUHieslieA 
of  all  Ibuipp*  Ai*c  mtrst  sacred,  l>ctng  land  marks 
aud  s«?ruritifN  *  rmn  lanccndii,  lioii  utovcuda/ 
unless  hti  \y>'  uiih  tliat  blooily  Roman 

€m|rt?n>ir  C:  it  the  whole  pe«(>le  of 

Jloinc  roiglii  ntire  out  one  nrcU  *■  ut  wnito  kin 

*  pcrcutrrct.* — See  ihc  (3 fib  act  oV  paHiuinenl 
J 663,  and  act  10,  Parliament  ICC'2  }  wbicli 
are  arin  i»f  iiuJtMtjntl y,  and  exempt  from  it  the 
rueddk-rs  witb  the  public  nioncy  :  B^i'  lliis  ob- 
livion and  iad^mnity  in  1679/b  more  ample 
tb«n  any  of  tbenn/  being"  drawn  in  tbe  most 
ample  and  coraprehcasive  terms  dcviseable  as 
moioly  dciiignea  to  secure  Lauderdale  and  bis 
party  for  the  highland  army  that  tlicy  sent  in 
wi»oo  tbe  west  io  1678,  Sec,  and  the  pardoning 
ilie  rebels  who  roB<;  at  Both  w  el -bridge  was 
but  a  sbam  and  colour  to  draw  on  the  other. 
The  lords  in  Fairj^  and  Klf's  case  13lh  Feb. 
168*1,  and  in  51r.  Jolin  Kincaid's  Ist  March 
1683,  fovnd  that  tfie  f;aid  indeinnity  did  not 
defend  against  restitution,  and  the  civil  effects 
of  damage  and  interest,  but  only  from  punish- 
ment, and  that  tbe  •  vindicta  j»rivaia  ct  publiea' 
<lf>^^'  ""'' 'I  by  the  indemnity  diflercd  from 
1  because  i\ie  rindicta  priritn  was 
lliL  __.:..^,^iion  of  goods,  and  I  ho  puhika  waa 
the  inflicting  tbe  pergonal  punisbment ;  which 
Iwij  w^re  only  remitted  by  the  net  of  indem- 
nity, but  nowise  simple  rcRtittition.  A  dis- 
*'barge  that  sir  Walter  Seton  bad  got  from 
the  king  of  hh  intromissions  as  collector,  did 
not  hinder  but  the  exchequer  forced  him  to 
compt  again  ;  apd  none  will  affirm  that  tliis 
indemnity  in  1679  would  defend  the  treasurer, 
ireas4iFer  depute,  or  sir  William  Sharp  as  casb- 
ket^per  fi^om  accomptlng.  The  lords  Ira- 
ni' ^  '  ^-  -..  ,  Uie  parties,  advised  this 
y  MformatioiiS(  andrepelltd 

tU  uL.tij,.^,,  .» liiid  tbe  superplus  of  tbe 

coinage  more  than  wa^  contained  in  the  king^s 
warniDts,  (though  it  could  not  be  iostrijcted 
from  the  exchequer  rolb,  or  otherwbe,  that 
tver  Ibat  superpma  was  accompted  for  in  tbe 
exchequer,  or  looke«l  upon  aa  any  part  of  his 
niajesty*ii  revenue,)  did  not  belong  to  the  offi- 
cers oi  the  Mint,  but  io  the  king;  and  that 
the  cxonenitiT>ns  in  tiieir  narrative  were  but  re- 
latireto  the  wamiflts*  and  so  c-ould  not  excee*! 
them  and  that  tbe  act  of  indemnity  did  not  ex- 
tf  I  '  *     procffjs,  which  was  not  penal  but 

/  o  onlvt  and  for  restitution.     Tbe 

^^  '  were ;    '  The  lords 

founded  on  l\w  act 
ut  ?>j  ,iiiiiii-^  V.  and  t    '*   '      '  nds 

*  t ;  as  also  repel  tl  nee 
i                    ,1  it,r>  ,..Mfv»  .,»  ♦!..-.      j,j,.  ,  ,«  .,  jitr- 

,  as  a  part  of 

?vnrnte  insiiits 

'■  '  I  >f  copper 

^  <  I  lie  war- 

^  rmts  ;  and  repi  i  thiit  aliedjreance  ioundcd  on 

lb*- f  xunrrTHirni",  and  Ihid  tbtJtp  exonerations 

^^extend  n'^*  in  lutbi;  (pjuntity  allow- 

t^  r^ .   . .  .1 V .  H  .ud  MOt  ^  iba  tiuilvcnia' 


^^^.extend 


^^\ 


*  lion  in  rtlailon  to  the  quanliiy  rx^eedcd;  aii__ 

*  repel  the  ailed geanoe  founded  on  the  act  of 
^  indemnity «  and  tind  (he  •^finitr  iAtuior  srcure 

*  the  defenders  froth  i*lc  in  rextitntioo, 

*  *  in  quantum  loci  M;h  sunt' by  tbv 

*  profits   of  the    (pi  niiiiy    ot  cop(ter    Coined 

*  more  than  was  contuiocd  in  the  warraiMs/  * 

*'  Tbe  king's  advocate  repitscnled  Io  tbe 
lords,  that  !iow  fi»r  tiny  Itud  rnadc  prolli  nnd 
bencllt  could  not  be  the  i ule  ;  for  what  if  it 
were  not  extant,  but  sptni  in  livitjg  bigb, 
or  in  playing  and  drinking?  when  on  tba 
lords  expuniitd  these  words  out  of  Ibu  in- 
terlocutor,  •  in  quantum  sunt  Iocupk»tali  j*  and 
made  them  simply  liable,  whether  *  in  rem 

*  versum' ornot. 

**  Tbougli  tbis  debate  and  it&  interlocutors 
took  up  se^^raldays  from  tbe  19th  to  26ih  Ja- 
nuary,  yet  it  will  not  be  fit  to  divide  it,  but  to 
give  it  here  altogether. 

•*  It  being  further  allcd^cd  fur  Lauderdale, 
and  the  i;Uier  o^Hcers  ol  the  Mint,  that  no 
more  of  tbe  copper  coin  coM  be  adjudged  to 
belong  to  the  kingbutatwelvth  pari,  (which  is 
tbe  propot  ttoii  be  has  of  the  Bilver)  and  tliit 
also  with  dciluction  of  the  price  of  tbe  cojipvr, 
the  expcnce  of  working,  and  the  fees  oi'  the 
workmen  ;  wiiich  beiu^  dtfaJked,  tbe  free 
excrescent  and  superplus  profits,  over  and 
aliove  all  these  abatements,  will  be  inconsider* 
able.  Notwithstanding  whereof,  tbe  lords  (bund 
the  whole  copper  coin  made  and  lituintx^, 
more  than  the  officers  of  the  Mint  bad  hii 
lnaJe^ly*s  warrant  for,  did  intirely  and  in 
solidum  belong-  to  the  king)  without  any  allow- 
ance to  be  deduced  for  the  metal  tnatter  or 
tbrm«     Imo.    Because  they  esteemed  it  *rcs 

*  ftiriivaet  peculatus  pecunite publico?.* — But  if 
so,  then  if  not  penal,  yet  it  was  *  mixta,  partim 

*  rci  persecutoria,  et  paitem  no^oaliK ;'  and  so  in 
part  pardoned  by  the  indemnity  :  \Vhich  forced 
them  to  run  to  a  secoud  ground,  viaf.  that  it 
was  tbe  king's ^'zirf  specifitutionU ;  the  king'i 
^anip  and  character  being  impressed  on  it,  ne 
became  *  domiuns  totius  tam  maieriie  quata 

*  formie.'  But  here  maUria  being  poUntior 
aud  predominant,  ^  ct  reducibilisadpriorein  for- 

*  mam,  dominus  materiai*  became  dominui  iQ* 
liux,     2do.  By  the  R^mian  law  in  that  *•  modus 

*  acqutrendi  per  speciticatioDem,*  the  owner  of 
tbe  matter  bad  an  action  competent  '  ad  esti- 
*■  mationem  et  pretium  num  materieconsequeo- 

*  dum.'  This  swcm\'  i  the  prior  mter- 
locuior,  and  not  beii  ^ible  in  Uw  ;  tti« 
next  day,  the  <^iise  iKMUg  again  called,  it  fiaa 
insUtod  for  the  earl  of  Lauderdale,  that  ha 
l>elioovetl  to  have  deduction  of  the  mattpr  of 
tlie  copper;  for  atn^  tbe  induction  of  the 
kijig'n  irojis  and  impriMs  Inmi^mitted  tbe  pro- 
perty to  the  king,  so  that  it  might  not  do  Jur^ 
m  prejudice  of  the  ^  !"*  i*  im!m*  ♦  d  *  ud  pri- 
*orem  materiam,'  'uuita  iioa« 

*  pms  «t  poteutialr'  u!  sr   ma* 

*  icriam  bic*  yet  it  was  i\  u 
of  the  price  and  valtjr                                   i,jr 

*  rot  non  dtl>et  lorv;  '  :%  ulu^rtu*  ^' 
ami  tbe  tndcmatiy   j^-     .  ^  ,  .  ,     .  rimini^l  dtj^ 


I 

I 

I 


175]  34  CH  ARLfeS  II,    Proneilngs  tt^ainsl  the  Earl  of  iMuderdah     [  iffi 


lint^uency  in  it.  The  kiii'/s  adn»cate  being" 
beiiteu  troiii  Ihe  notion  of  «p<rciticalian,  ran  to 
tbat  uf  Bcce«»ioUf  that  \\  became  the  kin^^s 
/ure  iicceMfOfitf,  like  a  biyat^  j^ieMing  to  the 
picture  drawn  ibercupon;  and  he  being  in 
doh  to  tipply  the  kii^^ii  irons  to  tnorc  metal 
tiiaf)  he  bud  warratit  fbi%  he  ougiit  not  to  reap 
fecoefit  •  exsuo  delicto.*  KepU^,Thai  decision 
id' Justinian'*  wassini^lar  *  in  picturaob  prae- 
'  stanttam  artis,*  and  yet  it  still  went  cum  ♦  onere 

*  pr^ii  tuhulae/  Vea,  bvthe  Komanlaiv,  *  eliam 

*  in  per&oiia  praedonis  bent^tus  vvsum  e«t  dc- 
*4iicere  iiiipcii»;u8  lam  olile^quam  necessarias* 
Mri  he  only  lost  the  Titlnptunrtns  ;  1.  L  38.  and 
99,  U.  de  baeretl  petit.  1,  ^^i.  c.  derei  vimlical. 
— TUii  lords  bemjr  straitened,  altered  dow aright 
iheJr  Ibrmer  intcHoculor,  and  found  the  utficers 
c€  tW  Mint  out^ht  to  have  allowance  of  all 
ODpfier  stamped  by  (betu  before  tlie  act  of  in- 
deniity  1679,  (for  aiter  serious  coosidcralion 
Ihey  durst  not  make  loo  btdd  wUh  the  loosing^ 
vi'  this  act  of  mdemnity,)  but  found  what- 
e?er  copper  waa  coined  since  the  said  indem- 
liily  was  the  king'a  conjiscationis  jure^  without 
may  defalcations  ;  and  ordainetl  tlic  oBicers  of 
the  Mint  to  condescend  on  the  auantity 
prior  to  the  act  of  indemnity  3  vhcreby  they 
designee)  to  chcit  a  confession  that  timy  had 
exceeded  their  allowance,  which  would  Ijold 
tbeiD  in  a  probation  ;  as  also  to  prove  the  va  ^ 
lue  of  the  iK»und  or  stouof  copper  ;  and  would 
not  allow  ibem  the  current  prices  it  was  then 
givin^t  bnl  only  what  it  really  stood  them ; 
and  for  the  expences  in  coining,  alloHetl  them 
to  defalk  whatever  wagies  they  were  yet  resting 
to  the  arlilieers  and  workmen,  but  refused  to 
allow  them  what  they  had  ahready  paid.  To 
the  |vrejud»ce«  arising  from  a  supeilctation  of 
coplter  coin  marked  by  me  alibi^  we  mov  add, 
r  That  foreign  commodities  cannot  be  bought 
with  it ;  for  strangers  will  not  take  it.  IL  6e^ 
ingama])  and  caretetsKly  kept,  tlie  half  of  it  m 
lew  years  comes  to  be  tost,  i,t>  that  the  half  of 
the  turners  coined  since  the  king  come  in,  if 
Ibey  were  called  in  now,  are  not  extant.  Ill* 
ibe  tmrhici  or  sixjiennj  pieces  force  and  tempt 
Hite^uy  more  of  fimall  commodities  than  we 
wed,  anil  they  who  formerly  bought  a  turner's 
ivortb  of  pins,  spice,  Jtc.  are  now  in  a  manner 
forced  to  buy  a  bawbie's  worth,  the  turners 
hifing  ht  com  e  t  ery  sea  r ct» .  A  m  ongst  th  c  V  e  - 
otliajif,  1  find  it  is  <leaih  to  apply  one  penny 
of  public  money  to  their  own  private  stock  or 
Hie, 

**  Then  the  king'a  adTocate  inaistfid  00  the 
•econd  article  of  the  libel  anent  hi^  refonnding 
Uie  proUt  of  the  buihon  ;  and  thous^h  louder* 
dale  ajledged.  tliat  the  master  of  the  >jint,  by 
hum  n^oe,  gift  and  bond  of  catttiou,  was  liable 
fbriltat ;  yet  i*      ^      '^  found  th*  '    :' 

llieMiott«aci  of  all  the  f 

Hti  negligpasce  lum  4>[ui^;sion,eqaalU  rmu  nnu- 
cipaUy  to  the  king^  and  not  only  iabsidmri(\ 
fe5Pr-'T"*  *''tu  bia  rehef,  as  accoH-  — .j-.t* 
Ui'  and  for  this  there  v 

^j«Qt  1609«  anaiit  the  l^ 


I,  9.  §  8,  D.  *  de  admin,  rer.  ad  civ.  (»rrt.*  T«thcre 

*carator  tenetur  nomine  collegas  si  prohibere 

*  eum  poterat*  Vet  I  Hnd,  LI  11-  12,*ud  13. 
D.  ad  municlpai,  make  him  only  liable  *  ortline 

*  discussionis  prius  ser*^ato ;'  anil  all  tautiotiera 
for  administrators  have  the  privilej^e  not  to  be 
couveened  in  prima  instantia^  till  the  pmicipikl 
be  iirst  discussed.  This  interioculi>r  fiudmg 
the  general  liable  for  all  the  malversation?*  and 
omissiuns  of  the  inferior  officers  of  the  Mint, 
was  grumbled  at,  fur  they  had  not  their  com- 
missions from  him,  but  from  the  king;  and  he 
could  lie  in  no  worse  cnse  than  a  tutor  or  over* 
seer,  ^  qui  teneriiur  tanlum  de  do|r»  laio  et  Uu 

*  culpa,*  Yet  I  Hml  mandatarii,  amonp  t%!i«mi 
also  are  contained  those  who  Imve  coi 
for  offices  and  l rusts,  are  lialile  in  hu^^ 
kvttiima;  but  tliat  must  only  be  undttMooJ 
of  their  own,  but  not  of  the  culpa  Uiwtma  iti 
these  under  him,  though  they  be  auswerobto 
also,  ci-  i/ua&i  delicto^  for  iheir  faults:  And  m 
this  rule,  masters  are  made  liable  for  tilde 
teuiinlB  and  seifrants,  and  sberirta  for  their  de* 
pulies;  see  Statula  Davidis  2.  cap.  30.  parents 
and  husbands  for  their  children  aud  wives  ia 
some  cases.  The  general  is  made  llalde  for 
the  inferior  officers  malvcrsatlous,  not  only  be- 
cause his  knowledge,  connivance  and  command 
is  presumed,  hut  Tie  should  have  impe*icd  and 
discharued  lb  era  to  have  coined  more  tljan  wa* 
in  the  kfiig*t^  warrants,  and  two  copper  jour- 
BCySi  nnd  Bhouk!  hare  rcvenled  and  not  con- 
cealed it  and  divideil  the  spoil  betwixt  thero| 
and  *  per  tit,  c.  de  Iklsa  moneta,  cliara  cunstt^r 

*  puniuntur.'    As  to  the  point  of  rdief  amon|^ 
themselves,  if  they  be  all  pmven  to  l*e  delitt' 
oueuts  and  in  dolo^  and  to  have  malvcrpeil  i 
their  tnist^  ;  this  ought  to  cut  off  all  relief, 
is  elegantly  decided  in  the  case  of  tutors,  I,  i, 
§  U.  D.  detut.  et  nit.  distrah.  and  if  one 
ibem   be  dead,  (as  here  in  Mr.  Jsmes    P:il: 
cooer*s  casc,  wht>  is  convccned  for  his  fatki 
the  wardens  malversations,)  «ucb  actions  '  de' 

*  dolo  qutp  factum  puninnt,  non  dantur  cootra 

*  heeri^des,*  where  it  was  not  established,  «f^ 
litis  cou tested  aguii^st  the  defunct  in  his  ow^H 
lifetime.  Vet  1  find  capers,  though  decerne^H 
to  restore  ships  or  goods  unwarrantably  sei»|^| 
on  and  taken,  have  relief  among  tliemse!ff%^ 
though  all  tfccerned  in  $olidum, 

*'  Then  the  lords,  after  the  debate,  adrts 
the  seventh  point  or  article  of  the  libel,  abou 
thd  profit  they  had  uik)ii  the  exaltatioti 
Crying  up  of  the  merks  in  1680 ;  and  it 
for  aU  bullion,  silver  coined  or  uncoitiedy  ] 
had  lying  beside  them  in  the  Mint-liouse  { 
time  of  that  act,  there  was  due  to  the  kha{^ 
eight  pennies  they  gained  on  each  merk  oT 
and  ordained  litem  to  restore  it ;    and  for  wh 
I  1  Tin  they  got  in  since  the  said  act « 
4  they  gave  the  merchant  fifty 
\iw;;^s  and  ten  pen  '       !  ' 

they  brought  in 

*'         :     eight    |>tHJhrv-<    :*in«  r    vu.n.    »<tt, 

'  accomptiiblfi  to  the  king  for  no  mocn 
•>am  of  ux\las  ihe  kinj^sl 


• 'j«m  jTOV«aaiUHiue  i;^i..  ;.,  <^L .;     ,  ^ut-  ^am  01  y4utu(,>[t  lue  kuij^s^ 

^«si«ri)i  M  Will  M  Che  toflitcr  I  snd  1  vocate  can  prote  ihey  compounded  i^ittith 


Bmdifthfrs.for  €>fficial  Mahtnaiian^ 


16BQ. 


banU,  for  \cm  thnu  iIm*  sM  fi%  tt^^lit 
fwliinir*  atifl  rvjUt  peinHCM^  anil  whfUevef  ihey 
gol  Jowii  of  it.  tin»l  it  belonjjs  to  \Ue  kinsr. 

*'  Then  ilie  kijijj *s  advocntc  ant]  sir  Pa! rick 
Hmni*  iiisiHti'il  on  ttie  er^itih  iiitk'te,  ani'iit  the 

mal^i*  iiuUiun  of;  Uip  lottl?*,  t»f*twiilistan«linp 
ftet  519,  [mrtMiikent  1507,  (which  they  found 
in  clesutflinh^  na  to  the  current  coin, 'though 
foreign «)  found,  rhai  tliV  inviting:  Jowii  nf  <1<J- 

•  liirs,  was  unuaiTatitahtp  u6  in//(<>;  utid  of  du* 
catnous,  on) y  »inre  thev  were  <Tied  un,  as  p&sa> 
ing  money*  in   1080;"  and  timt  the  king- mnst 

•  hate  the  same  jiwHt  on  them,  as  he  vroiihl 
IHto'e  had  of  im parted  hnllinn*  tiz.  the  l!?lb 
npN;  though  Luuderdftle  nlleii|;j:od  it  wa&  only 
]  the  ;iOth  iiofl:    And   found,  that  not  only  the 

coin  bearing  the  king*i»  impress,  hut  that  no 
foreign  coin  that  iiassei  as  current,  ought  to  bo 
melted  down  ut  alL 

•'  Then  al>er  <lcbjite  on  the  articles  anent  the 
remedies  of  Hnes  tind  wei^lit,  the  lonk  found  a 
^imin  aboTe  and  hchiiv  the  Mandiird  of  weig-ht, 
"  and  two  |2^ruiii!>i  above  and  btlow  eleven  penny 
'  fioe^  as  tiie  standard  of  the  inlrin<!ic  value  and 
fineness,  were  albmed  only  as  a  latitude  "^to 
'  work  on,  where  cAsually  they  fell  ab'ivc  or 
under,  because  it  would'lie  «n'i(i>snjH'rahle  la- 
i>our  to  be  precise  ;  hut  found  thtni  culjwible, 
the  ktns;*«  advocate  provinw"  they  wroucht  on 
li»e  remedies  In^ncath  standard^  as  a  coniitant 
iidvanta|;e,  so  that  wheti  they  came  to  trone, 
or  weti^i  a  mcrk  piece,  if  ihcy  found  it  exact 
weight,  they  would  part,  raie,  ur  scrape  a 
^ratn  off  it,  till  it  came  to  the  remcad  ;  which 
frandulent  prachte  Ix'ui^  known*  the  lords 
found  them  liablu  fur  restitution  of  these  g^-aios  ; 
and  finding  the  article  of  John  Fjilconer*^  Invnd 
to  Alexander  .^laitkind,  was  made  up  of  tlur 
renieads,  tii*?y  re«oheil  to  cmdkcate  the  said 
tnm  to  the  king. 

"  'llie    krng*s  advocate   thcreattn'   insisted 
i  AgniuHt   Mi\  James   Falconer*  that  he,  ns  suc- 
'  cesser  *  titulo  lucrati^o  ^MistconfrsKium   dcbi. 
*  mm*'  must  be  liahle  for  hi»  father^   part; 
irbich  he  did  urge  not  only  ibr  nil  deeds  done 
by  his  father  bm  warden,  before  he  gave  him  a 
^  disposition  to  bin  estate,  but  even  for  all  deeds 
lifter,  because  he  being  introHtctl   by  th^i?  king  j 
with  his  money,  he  became  debtor  from  his  I 
firitt  tiitry  to  hm  office,  and  uny  di^sposition   he  i 
n^en^ardHtnirkeMorhi^  estate  to  his  eldest  son»  i 
repute  ffauilnlfot,  and  otigbt  not  to 
the  kinjj's  tacit  hvpotherk,t!ll  he  be  I 
jNjKj  r^i  Ins  own»  which  is  ogrctuide  to  la^v,  Hnil  I 
the  Fi»ik*«  privrlegw;  ride  Antoii.  Peregrin,  hh. 
G,  dejurc  Fintn,  c,  fl.   Yet  this  will  exceedingly 


decerned  already,  than  all  the  genefnl  atid  the- 1 
other  officers  of  the  Mint,  thctr  estates  are  Me  \ 
to  pay,  if  this  rigor  be  not  soniewhnt  rcmittedf  ^ 
by  his  mnjesly  ;    so  that  they  need  not  insi-^t  ] 
for  atinualrciits,  unte!^!%  it  1k'  fi»r  example,  anti 
to  strike  terror  in  other.^  j    atui  it  is  impossible  i 
that  any  can  miinuge  the  I^Iint  office,  if  they  i 
he  80  strictly  searched.     But  it  will  be  theeari 
of  Stafford  V  case,  who  wa«  found  guilty,  yet 
with  one  breatli  it  was  declared  it  should  not 
be   drawn  into  a  preparative.      However,  Id  j 
this  ca^^e  of  Halton's  stand  us  a  great  instancf* 
and  beacon  of  the  i^iix  and  inconstancy  of  all 
sublunary  greatness. 

"  The  Lords,  upon  the  Cnd  of  FebrnarVp 
168:j,  found  my  lord  Muitland,  then  newly 
come  home  fmra  London,  liable  as  ctmjnnct- 
general  with  his  father,  J  hough  be  tiever  loed* 
died  ;  because  he  ought  to  have  supervised^ 
and  his  being  adjoined  when  he  was  so  young 
OS  not  to  be  able  to  officiate,  was  allenarly  hitf 
fatluVi  fiiult.  In  this  case,  Halion^s  tni> 
much  debute  and  opposition,  made  tlie  decreet 
tiie  stronger  ;  for,  they  thought  to  have  hooked 
htm  in  the  debate,  whether  sir  John  Falconer  , 
was  Ixiund  to  relieve  him,  and  to  have  freed  sir 
Jcdjn  ;  but  Ifalton  smelhngit,  declared  he  hud  no 
process  of  relief  against  him  as  yet,  and  would 
not  insisit  no;v.  It  may  he  doubtetl,  if  the  chancel- 
lor or  other  lords  who  were  tm  t  he  first  com mn?- 
sion,  and  had  already  given  their  opinion  there 
againiit  iThn,  tnight  not  in  law,  have  been  de- 
clined as  prejudicjite  and  pre-engaged,  8omG 
of  the  votes  aqiiiniit  Halion,  were  carried  only 

by  the  exlniordmary  l/jrds, Quiiritur^  ff 

such  inlerlocutors  umy  not  he  suspected  as  not 
nitoginher  consonant  to  Jaw,  the  extraordinary 
Lurrls  not  hcing  bred  lawyers?  Inthis  process, 
the  Lrti'ds  followed  the  ancient  sutnmur  way  of 
advising  prrw^esses^  by  debating  and  discuiwtng  . 
the  rcleviuicv  of  one  point,  befon*  they  hcar<l 
another,  aufl  removing  the  pnrtics  (jrescntly, 
wit  bout  wrrtten  inf5jrmations,  and  giving  theni 
a  distinct  interlocutor  on  eac  h  of  thettr. 

*'  1  be  Act  of  Lit  iseon(  est  at  ion  jn  this  Mrnf- 
cause  being  extracted,  the  I^ird^,  on  the  yoth 
of*  February,  I68^i,  appointeil  Cnstlcbill,  Boyn 
and  Onimcairn,  to  receive  the  probalion,  and 
to  nernsM»  and  to  prepare  it  to  the  whole  Lords, 
anfl  therein  to  t>ilce  the  lulp  of  heutenant* 
genenil  Drummoi  d,  tionbm  of  Gordon<«tt  n^ 
atid  rtadie  Bnifd.  This  was  thought  oUd,  to 
adjoin  asuscssurs  to  the  Lord*;t  but  the  matter 


♦  Should  Ik*  Stratlonl.     Slc  vol.  3.  p.  1519. 

t  Mr.   Hume   (Contmentaries  on  th<f  De* 

scription  and  Punishment  of*  Crimes,  vol.  1,  p. 

man-  the  commiMce  with  mich  puhli»*  olTicers,  |  4L)  siiys:    '^The  JuNtice  Court  bi«run  to  iv 


utid  iH  on  the  matter  an  interdicting  of  them 

•*  Then  h«  in»i*ted  for  the  aimualrcnts  of 

^^tr  sum*  arising  irinn  their  tlehnfjuency,  utid 

'  El  in  not  pavinjr  what  they  wer»-'  owing,  and 

efore  uunuulrcnt    was  due   here,   nmnine 

nni  €i  interrsyc^  tbougli  there  were  ocUhcr 

^jjH»  nor  paction  i**  infer  annualreut ;    and  this 

'  K»  anotbfvf  pri%  il(*ge  of  the  tUk  ;  fide  Pere* 

,  ibicL     But  there  are  more  piuicipaJ  stuns 

roLu  XI. 


cover  fffim  that  ntate  of  depn*Hsioii  into  which 
it  had  ftdlcn,  and  to  aspire  to  the  like  indepet!* 
dence  in  its  prot»er  d£*partniei»t,  %thicl!  the 
other  stipremc  jndjcttturcfi  matntnined  in  theirs » 
'['he  rcgnhitions  of  lti72,  without  <xprts\Iy 
furbi4hhng  the  np(>oiiitment  oi  a&sessurs,  had 
in  their  pi^amble  uUudedtolhc  inconveujencies 
of  that  wrt  of  interfercncpr  The  eotntniKsion 
too»  of  i071,  tklWr  iuvi'iltug  the  new  cvatt 
K 


179J 


34  CHARLES  IL    Proceedings  agaiKst  the  Earl  of  Lauderdale    [180 


was  sonicuhat  out  of  the  road.  This  tedious 
f«ruces8  was  at  last  advised  by  ihe  Lords ;  and 
u}>uii  March  20,  1(383,  they  found  it  |irovcu 
by  John  Falconer,  warden,  bis  deposition,  that 
tfifre  was  17,000  stone  weight  of  copper  coin, 
thoui^h  there  was  only  warrant  for  10,000 
stone,  ()et  it  was  objected,  that  John  iinmeih- 
atcly  retracted  and  amended  his  deposition, 
but  they  would  not  write  it ;  and  that  he  was 
only  icalis  sin^ularis,  and  that  it  was  not  taken 
in  judicio  ordinario^  but  in  snmmario  on  the 
kiu{4''s  couimission  ;  but  it  was  alled^e<l,  that 
he  bein;^  a  party «  knew  best  wliatwas  coined ;) 
and  found,  that  llaltcui  had  UiUen  (300/.  ster- 
lingf,  from  sir  Ji»lin  FaJconer,  to  ^et  sir  Johii^s 
accompt  of  bullion  past  and  cleared  ;  which 
tliey  decerned  him  to  pay  back  to  the  king*  as 
caductun^  being'  a  bribe,  unless  he  condescend 
upon  another  ca«ise  of  bis  ^ivin|^  him  it :  And 
Ibuud  the  sum  they  were  all  liable  in  to  the 
kiuj^  conjunctly,  was  72,000/.  sterHug,  for 
which  they  decerned  them  all  in  solidum.** 

Ma^  10,  1C83. 

"  This  day  there  is  a  letter  from  his  majesty 
read  at  privy  council  and  excheouer,  bearing' 
the  Bnul  sentence  and  determination  he  &^ve 
forth  against  the  oiiicers  of  the  mint,  viz.  That 
whereas  his  advocate  having  obtained  a  decreet 
against  them  before  the  lords  of  session  for 
72,000/.  sterling,  and  he  mindintr  the  eminent 
services  he  hath  rccei\ed  from  his  late  general 
of  the  mint,  now  earl  of  Lauderdale,  theraforc 
he  miti^^ates  the  sentence  against  him,  and 
iinds  him  only  liable  in  20,000/.  sterling  for  his 
part  of  it;  whereof  16,000/.  sterling  the  king 
gifts  to  his  chuncellor,  and  ^,000/.  i»terling  to 
Graham  of  Claverliouse ;  with  this  declaration, 
that  if  Lamkrdale  and  his  8(»n  the  loni  justice- 
clerk  shall  dispone  the  lands  and  lordship  of 

wit'j  all  iho  powir;;  and  privileges  which  had 
Uloii<;i.d  to  the  jusiic-c-gotKial,  justice  cleik, 
*ihI  jubilee- deputes  of  r!ii,  liiiu  proi'^eded  to 
declare,     *  qiiud    anted  seta  curia  jubticrlariu', 

*  proul  per  prti'sentes  t-st  stubiiita,  est  el  erit 

•  nostra  siipren:a  curia  jiisticii:riu',  et  ordina- 

*  rimiM  liuiinalc  jtidiratorium  :*  aiidcs;i<.ci:illy 
it  had  pro;  Idinl,    ^  (|uod  nulla  causa   ad  illud 

•  sptctiii.s  ahstralKtur  ali  eodom.  nei:  adduca- 
'  tiiiod  ctiodvjs  a!iud  ordirs.rium  jiidicaturium 
Miit  :>.<!\i.culiunis  prcco^niiionis,  scu  super' 
Mpuivis  alio  prtetexta  <jm:cu:j(]ue.'  On  the 
pait  (»f  tl.u  privy  council,  tiicrefoic,  sume  of 
ll.r  abovf-niciitioiiui  irn'gului-  iiiK /jn -.ition. , 
■ct-lt.-iN  tiic  naminc  of  ass;':>'«i'r:u,  and  il.e  re\i- 
■a!  <  1  ;ii(;  procceilings  of  c«..iirt,  wtTf  imuK^di- 
atilv  »ii»-c()!!liiiu(.il ;  ui.d  iiio>.t  oi"  the  other 
hbw:.t.  „■'  I 'i  III."  p'ivy  co;:(:cil,  boucvcr,  named 
o.-,.'.i.S;«iis  ■^»  'it  viiili  till'  ju«!g'v'  ;i<ii:iiral,  in  the 
i!(*tr..l  tr;  .1  '..t  (Jnen  and  olhri*,  for  piracy  and 
inunlti,  in  17l)oj  *Mhon;rh  not  at  onue  laid 
asiilo,  \unv  [.ratii.scd  howi'ver,  afii  r  this  tiine, 
villi  r.iore  k-i  i  vo,  and  in  a  ma.nncr  k-ss  olfcn- 
■ivc  to  th<'  foiirt  at  least,  than  IcrmtTly  ;  and 
af\er  the  UwvokiUou  they  vamc  to  b«  eotircly 

dMUbVd." 


Dundee  and  Dudhope  (of  which  the  king  had 
gifted  him  the  ultimus  hitrety  ward,  marriaffi 
and  recognition  11  years  ago)  in  ftivoan  of  tha 
chancellor,  then  he  shall  be  free  of  the  foresaid 
sum  of  20,000/.  sterling,  providing  he  give  real 
warrandice  out  of  other  lands,  and  ogaiost  all 
the  late  earl  of  Dundee's  creditors,  or  their 
consents ;    and  that  it  contain  all  w  ithin  two 
miles  of  Dundee ;  so  that  Glastory  and  Inner- 
kiething  iall  not  under  it ;  and  that  Claverhouse 
shall  have  power  to  redeem  the  bouse,  yards 
and  parks  uf  Dudhope  with  the  constabulai^  of 
Dundee  and  all  its  emoluments  from  the  chan- 
cellor at   20  years  purchase;    (which   somt 
valued  woith  30  years,  because  of  the  g^reat  d^ 
pendance  and  superiority.)    A!i  to  sir  John 
Falconer  late  master,  the  king  fined  him  in  4 
years  antl  a  half's  full  rent  of  his  whole  estate 
iiolh  personal  and  i*eal,  besides  the  bullion  in  his 
hand. — He  was  made  so  easy,  because  they 
had  privately  forced   him  to  give  his  brother 
David  Falconer  a  l)ond  of  9,000  merks. — ^And 
decerneil  James  Falconer,  the  late  warden's 
squy  and  Alexander  Alaitland  the  late  coonter- 
warden,  in  6  years  rents  of  their  whole  iiir- 
tunes;  tliough  there    was   no    passive  titles 
proven  against  the  iirst,  and  not  so  much  as  a 
decreet  against  the  second.    This  way  was 
taken  with  thir  two,  because  Mr.  James's  father 
having  hangeii  hiinself,  as  was  ro|K>rted.  his 
son  refused  to  pay  any  composition  for  his 
eschcat,shewinga  right*  he  had  long  prior  te 
life  rent  and  all,  df-nudiug  his  father,  and  much 
debt  Qnon  it :  and  it  was  to  furce  the  second  te 
demit  his  place  of  macery.     It  was  said,  the 
fines  of  thir  threb  la^it  were  given  to  the  two 
Scots  secretaries. — t)n  roadirg  of  this  letter,  I 
found  it  likewise  connnanded  the  earl  of  Lan- 
der4lalc  to  discharge  any  relief  he  clainieil  or 
had  against  sir  John  Falconer  as  master,  or  the 


And  in  another  place  (1  Comment,  cap.  1, 
pp.  ^$,  4.)  after  noticing  tliat  in  Scotland,  it  was 
part  of  the  king's  prerogative  formerly  to 
judge  in  person  if  lie  pleased,  he  nunitioDS, 
"That  by  statute  1(381, cap.  ia,the  3rd  parlia- 
ment of  Charles  2nd,  it  was  attempted  tu  re- 
vive this  principle,  and  carry  it  into  practice.'' 
The  statute  was  as  tbllows,  *  Act  asserting  his 
majesty's  pivrogative  ia  i»oint  of  jurisdiction. 
Spptend)cr  loth,  IGJjI.  The  estaies  of  parlia- 
mciit  (onsiduring  that  all  govtruiTient  and  ju- 
risdiition  v^itliin  this  his  niijesnes  ancient 
kiii!;(li)ui  ofS^'otland,  dovs  originally  reside  iu 
Ills  sacri-d  mHii.'Liy,  his  Lawful  hei.s  and  snc* 
Cc-bsors:  And  although  liis  majesty,  and  bis 
rryal  pndeccssors,  have  bestowed  offices  and 
jurisdictions,  upon  sevemi  of  his  well  desert- 
ing snl>iv.cLs,  ytt  tliese  are  not  privative  of  hia 
jurisdiotiun,  t.'icy  dotherribrc,  in  a  dutiful,»DMl 
humble  recogni/ance  of  his  majesty's  royal 
right  and  prerotrntive  as  to  this  p<)int,  declare. 
that  notwithstanding  of  these  jurisdictions  and 
oiiiccs,  his  sacred  majesty  may  by  himsell^ 
or  any  commissionated  by  him,  take  cogni* 
sance  anddecisioD,  of  aoj^  cases  or  cauaetlM 
pie       - 


181] 


m^i  oikeripfor  Ofieial  Mtdwersationi. 


A.D.  168?. 


[182 


other  iDierior  ofBcera  of  the  mint.  This  was 
a  miserable  reverse  of  fbrtyne  upon  my  lord 
Lauderdale,  ibr  all  his  services,  and  a  flpreat  do- 
cument to  all  statesmen  of  the  lubncity  and 
instability  of  their  offices:  and  it  was  no  won- 
der  to  see  the  lords  unwarrantable  and  illegal 
decreet  restricted,  they  having  decided  supra 
ftome  very  odd  and  irregular  points  in  it  In 
August  1683,  the  cl^incellor  and  Lauderdale 
agree  J  and  he  accepts  of  the  half,  viz.  8,000/. 
sterling;  or  10,000/.  Scots,  and  '20,000/.  Scots 
farther  when  they  shall  be  able,  and  whereon 
they  gave  him  sir  William  Sharp,  Cockbum, 
9c6,  cautioners ;  and  having  gotten  an  assigna- 
tion to  the  chancellor's  right,  they  offered  to 
Claverhouse  (who  resented  the  chancellor's 
transactini^  for  himself,  and  deserting  him,  and 
•ntering  mto  friendship  with  Halton,)  the 
house,  yards  and  old  park  of  Dudhope,  with 
the  constabulary  of  Dundee  for  90  years  pur- 
chase, as  he  was  to  have  paid  to  the  chancellor, 
in  whose  place  they  were  come.  And  they 
being  debtors  alternative  in  4,00Q/.  sterling,  or 
that  offer,  they  elected  this  last ;  which  he  de- 
clined to  accept." 

July  4, 1683. 

<*  An  act  is  made  anent  the  mint,  closing  it 
up,  till  the  parliament  sit  to  give  it  new  regula- 
tions ;  and  ordaitiing  the  Spanish  Ryals  of  14 
drop  weight  to  pass  at  66  pence.  Some  mer- 
chants think  this  way  of  crying  up  and  serving 
ourselves  with  foreig^i  coin,  is  an  easier  way  of 
furnishing  the  country  ;  which  custom  Poland 
and  some  other  places  use ;  but  it  is  not  so 
creditable." 

November  7,  1603. 

**  The  earl  of  Lauderdale  upon  a  bill  to  the 
lords  gets  a  stop  to  the  charge  of  horning  given 
him  by  Claverhouse,  the  high-treasurer,  and 
Hew  Wallace  cash-keeper  on  the  decreet  aucnt 
the  mint,  in  regard  he  offered  obedience  to  the 
king's  tinal  determination  in  May  last,  and  so 
ought  not  to  be  charged  for  the  whole  72,000/. 
sterling  contained  in  the  lords  of  s^sions 
decreet. 

December  13, 1683. 

«<  There  is  a  letter  from  the  king  to  the  chan- 
cellor, stopping  the  procedure  against  the  earl 
of  Lauderdale  on  the  decreet  anent  the  mint  till 
the  15th  of  January  next;  and  recommending 
to  Claverhouse  and  him  to  agree  about  Dudhop 
and  Dundee,  and  each  of  them  to  nominate  two 
privy  counsellors  to  endeavour  an  accommo- 
dation between  them. 

January  1, 1684. 

**  The  juncto  of  the  council  met  on  Argyle's 
letters,  and  have  got  Gray  of  Critic,  and  Mr. 
Geoiige  Campbell  to  decypher  them. ,  They 
first  touched  the  earl  of  BaWarhoute,  as  he 
who  was  touched  with  the  hieroglyphic  of  D. 
and  «s  above  the  head  of  the  D.  and  of  H.  i^ 
— When  the  lady  Argyle  found  her  own  son 
tbas  touched,  she  then  said,  that  she  now  re- 


membered that  D.  ^  was  only  a  relative  par- 
ticle in  the  key  betw^n  her  husband  and  her, 
and  so  roeaned  the  L.  M.  [Lord  Maitland]  im- 
mediately mentioned  before;  which  inferred 
against  him  that  he  was  corresponding  with 
and  receiving  lettoi-s^  from  Argyle,  a  traitor. 
The  juncto  upon  this  sent  fur  the  earl  of  Lau- 
derdale, and  sent  with  him  captain  Graham, 
and  sir  William  Paterson  their  clerk,  to  seal  up 
all  my  lord  Maitland,  his  soii,  (ihen  at  London) 
his  papers,  trunks  and  cabinets,  till  they  should 
sight  them. 

January  24,  1634. 

*<  Colonel  Graham  of  Claverhouf^e  insisting 
against  the  carl  of  Ijauderdale,  upon  the  king's 
letter,  to  dispone  to  him  the  house  yards  and 
parks  of  Dudhope,  with  the  constabulary  t>f 
Dundee,  he  paying  20  years  purchase  for  it  to 
the  chancellor,  to   which  20  years  purchase 
I^auderdale  on  his  transaction  with  tne  chan- 
cellor was  assigned.     It  was  alledged,  Esto  this 
were  the  king's  'cause,  yet  not  being  called 
within  48  hours  after  the  returning  of  the  pro- 
cess, he  behoved  to  have  15  davs  advertise- 
ment, conform  to  the  16th  act  or  par.  1679, 
ratifyinfif  the  regulations;  which  he  had  not 
got.    The  lords  repelled  this,  in  regard  the 
kingf's  letter  mentioned  supra  13th  December 
1683,  recommending  to  them  to  agree'  was  a 
medium  impedimentum  ;  and  there  %vas  but  48 
hours  between  the  up-giving  of  the  tryst  and 
the  calling,  which  satisfies  the  act  of  parlia- 
ment.   Then  alledged,  the  sum  of   4,000/. 
sterling  of  the  Mint  decreet  being  gifted  to 
Claverhouse,  the  king  was  denuded,  and  it 
came  to  be  in  the  case  of  a  common  donator, 
who  had  not  the  priirilege  of  a  sumraar  railings 
but  behoved  to   abide  the  course  of  the  roll. 
The  lords  find  the  letter  made  it  still  as  if  it 
were  in  the  case  of  one  of  the  king's  own 
causes.    AAer    repelling    thir    dilators,   then 
Claverhouse    insisted    that    lord    Lauderdale 
might  either  purge  all  the  incumbrances  that 
aftected  the  house  and  yards,  or  else  give  him 
real  warrandice  out  of'  his  other  estate  •  the 
lords  delayed  to  answer  to  this;  seeing  the 
offer  of  absolute  warrandice  may  satisfy  ;  for 
by  an  inhibition  served  upon  it,  it  may  be  made 
more  effectual  than  real  warrandice,  which  is 
restricted  to  a  particular  subject  out  of  which  it 
is  given  ;  whereas  an  inhibition  stops  the  dis- 
posing upon   any  lands    within  these  shiree 
where  it  is  served  and  execute. 

February  28, 

"  Claverhouse's  cause  ajjrainst  the  earl  of 
Lauderdale,  was  called  ;  nnd  th(»  I^rds  found 
they  might  advise  it  summarily  without  inrol- 
ling,  it  being  a  part  of  the  king's  cause  ;  and 
that  tHey  cannot  obhge  sir  John  Maitland  to 
consent  to  his  father's  disposition  to  Claver- 
house; but  ordain  the  clerk  to  mark  on  the 
process  that  he  was  cited  ;  and  find  by  tbe 
probation  that  the  twenty  years  purcha-e  of 
Dudhope,  «Scc.  comes  to  6,000/.  Scots-;  and  on 
his  paying  thereof,  ordain  the  dispoiitioo  to  ll» 


183J 


34  CH  ARLE8  II.     Procuiingn  agaimt  the  Earl  of  Lauderdale    [  184 


delivered  up  to  bim  before  tlie  SOlb  of  March ; 
betwixt  and  which  time  Lauderdale  may  obtaia 
uiv  loixl  Maitland  and  bis  lady's  consent; 
otlierwi!>e  ordain  the  decreet  to  be  extracted. 

March  29. 

*'  Tlic  king's  remission  to  the  earl  of  Lauder- 
dale and  his  son  came  down ;  but  a  letter 
clogged  it  with  two  qualities ;  Imo,  That  he 
should  perfect  his  disposition  to  Claverhouse, 
2do,  That  he  should  discbary^e  his  'recourse  of 
relief  afpiinst  sir  John  Talconer,  and  the  other 
officers  of  the  Mint ;  and  bore  |>ercniptonly  that 
thir  should  be  performed  within  ei^it  days  af\er 
Bi\g\it ;  and  if  they  were  delayed,  (which  his 
majesty -would  riot  believe,)  then  the  remission 
not  to  be  past  the  seals.*' 

Much  collateral  liti^^^tioii  issued  from  this 
prosecution,  as  appears  from  passages  iu  1 
rountainbull,  p.  337.353.  3(30.  394.  409. 

With  respect  to  the  sealing  up  of  (he  papers 
on  January  1st  1684,  it  may  from  lord  Foun- 
tainhnlPs  roprcsentation  seem  that  Wodrow  has 
not  expressLd  himself  with  his  ordinary  exact- 
ness. His  words  are  *•  1  find  an  orJcr  Irom 
the  Secret  Committee  to  captain  Patrick  Gra- 
ham and  sir  AVillinin  Patcrson  to  go  and  seal 
all  the  lord  Maitlaud's  papers  in  the  late  Lau- 
derdale's lodgings.  It  seems  a  little  before 
this  that  once  great  man  the  duke  of  Lauder- 
dale died ;  and  notwithstanding  his  bright 
parts  and  long  favour  with  his  master  at  length 
lie  fell  into  the  utmost  neglect  and  contempt : 
and  now  it  seems  the  present  manaeers  resolve 
to  canvass  his  papers."  History  of  the  Suffer- 
ings of  the  Church  of  Scotland,  vol.  2,  p.  451. 


DECREIT  His  MRJestics  Advocat  against  E. 
Lauderdale  and  officers  of  the  IMint.  D.  D. 

Att  Edinburgh  the  20th  day  of  March  Im. 
6  c.  and  eightie  thrie  vi'ires  anent  the  sumonds 
and  ac'tiono  raised  ancf  perse  wed  liefor  the  lonls 
of  counsf>ll  and  sessione  at  tht^  instance  of  sir 
George  M*Kenzie  of  Hosihau«:h  his  nia*ties 
advocat  for  his  highnes  interest  iu  the  maitter 
hundr  written  ngiiinst  (.'haries  earle  of  Lau- 
derdaile  and  Richard  lord  Maitland  his  son 
laite  gencrall  of  hus  nm'tios  Mint  sir  John 
Falconer  laite  master  thereof  AltxanUer  Mail- 
land  one  of  the  \\aiidens  thereof  Mr  John  Fal- 
coner sou  and  aire  to  the  dccii^t  John  Fal- 
coner the  other  wairden  his  fiUt'ier  at  the  least 
behaveincT  himself  as  aire  to  hiui  he  intromis- 
sione  with  his  airship  goods  at  least  ex'er  to 
him  at  least  successor  to  him  in  his  lands  and 
hen  t  idges  *■  titulo  lucrativopost  contractum  de- 


that  his  tna'tie  since  his  happy  rraturatioiie 
was  pleased  to  allow  six  thousand  stone-  of 
copper  to  be  coynied  at  two  several!  limited 
tymes  Yet  notwithstanding  the  said  Chariet 
earle  of  Laudenlale  and  Richard  lortl  Maitland 
laite  generall  of  the  Mint  sir  John  Falconer 
laite  master  John  Falconer  and  Alexander 
Maitland  lait  wairdens  and  Archbald  Falconer 
laite  counter  wanlen  di((  most  wnjustly  and 
wuwarrantably  under  the  pretence  and  sbaddow 
of  the  said  six  thousand  ston  alloived  to  b6 
coyned  at  two  several  I  tymes  did  coyne  above 
foiittie  thousand  ston  of  copper  which  wasther- 
tie  four  ston  more  then  was  allowed  wfaerciif 
twentie  thousand  stone  dureing  the  first  copper 
iumay  and  fourtie  tliousand  stone  dnreingf  the 
last  copper  jurnay  to  the  great  losse  and  prgn- 
dice  of  this  ancient  kingdome  And  they  bar- 
ing uswally  coynietl  threttie  six  shillintfs  oat 
of  every  pound  of  (K)pper  of  tlie  said  thretlie 
four  thousand  stain  that  was  coynied  more  nor 
was  allowed  by  his  ma'ties  warrands  which  did 
amount  to  the  soume  of  nvn  hundreth  aiventy 
nyn  thousand  and  two  fmndred  pounds  ftr 
which  the  said  Charles  earle  of  Lauderdale  and 
Richard  lord  xMaitland  as  cheiff  officers  of  the 
Mint  who  hade  power  to  supervise  and  oontroll 
tlie  other  officers  and  punish  them  if  tbey 
coniitted  any  fault  who  hade  special  trust  from* 
his  ma'tie  and  als  the  oy'  officers  of  the  Mint 
'  singuli  in  solidum'  ought  to  be  lyable  to  his 
maHie  with  the  a'rent  of  the  severall  soumes 
coyened  at  the  severall  juruayes  more  then  was 
allowed  by  Uic  warrands  from  the  tyme  of  the 
expyring  of  the  rex've  jurneyes. 

And  alse  all)eit  his  ma'tie  and  ro^all  pre- 
decessors have  alwayes  hade  a  speciall  caird 
to  provyd  buliyone  for  the  incressine  and 
roantinance  <»f  the  stock  of  coynadge  of 
this  kingdome  and  that  it  is  expresly  pro- 
vydit  by  the  act  of  parliament  that  the  goods 
and  marchadise  imported  by  the  marcbands 
should  pay  soe  many  unce  of  bullione  or 
oy*wayes  pay  twelve  shilling  Scots  for  ertrj 
unce  therof  the  generall  and  masters  of  the 
Mint  by  the  inarchants  the  soume  of  threlia 
thousand  siven  hundreth  and  twentie  poumb' 
yearly  as  the  twelve  shilling  for  every  ounce 
of  bullion  with  which  they  should  havebou^ 
two  hundred  stons  of  bullione  yearly  which 
from  Caudlsinis  Im.  vi  c.  and  siveutie  which 
is  the  daite  of  the  act  of  parliament  by  wbidi  . 
marchants  ware  allowed  to  pay  in  to  the  Mint 
twelve  shillings  iu  place  of  every  ounce  to 
Lambas  lin.  6  c.  eightie  two  being  iwelva 
yeares  and  aiie  halfe  ainounfs  to  the  soume  of 
three  hundreth  and  eightie  four  tliousud 
pounds  And  yet  notwithstanding  the  laile  ge- 
neral's and  masters  have  rcceaved  the  soume 
of  three  hundreth  eightie  four  thousand  pouadi 
dureing  the  forsM  tueUe  yeares  and  ane  balfil 


*  bitum'  at  the  least  unv^rsall  intromitter  with  >  from  the  marchants  as  the  twelve  shilling 
his  go<Mls  and  gear  And  .Aindilmld  Falconer  laite    place  of  every  ounce  of  bullion  and  sboaU 


counter  wainien  Uiakaud  mentione  that  wher 
albeit  by  tie  lawes  of  all  nationes and  acts  of 

Eu-liamcnt  of  this  kiugdonie  the  cuneying  of 
ar>  »>'*»v  without  wairand  is  discharged  and 


have  imployed  the  samin  for  buying  of 
y't  they  might  have  coynied  the 


they  have  inverted  the  said  twelve  sliillingmm^ 
the  use  ffor  which  it  was  destiuat  and  Sd  aol 


and  others,  fcr  Official  Maha'mihm, 


A.  D.  16S2. 


[186 


imploy  it  for  buying  of  buUione  but  apply etl  it 
to  ihcr  own  |mvat  use  Ami  thedbrtliey  ougbt 
to  be  lyahlc  lo  his  uiaUie  for  the  smf  twelve 
stulling'  payed  in  liy  the  mareUants  in  place  of 
biillione  extending  to  tbe  saiii  s«unne  *if  iliree 
likindrellk  ti;;li»ic  four  thousand  pikundslhe  yeirs 
above  mentkiuBl  ivitli  tlic  a'n  ni  iif  tht)  said 
threrie  thousand  si  feu  hiindrcth  and  tweniie 
|K>un4  they  received  yearly  from  the  first 
tertiie  the  sumcn  l»€4  ame  due  to  hit*  out  mn^tie. 

As  also  bis  nia'iie  of  his  prinely  care  tor  \he 
j^oo*l  uf  liiei  ^kithjeois  increbiiiag  of  luouey  wilhiii 
this  kin^rdom  and  for  advaneeiuif  his  rev  en  e  wen 
arrysiug  by  the  Mint  <lid  allow  the  generalls 
anil  master  and  officers  of  Mint  ihe  yearly  | 
a*rent  of  the  son  me  of  three  ihonsiuiil  three  ' 
buodrcth  thretie  three  peund  six  shdling-  eight  ^ 
pennies  yearly  as  a  stoek  tor  hnyioj^  in  of 
huJlione  tnMiie  tynie  to  tynie  which  mtj^lil  have 
bought  tweutie  sigas  of  Uullione  at  every  tyme 
which  mig:ht  have  been  coynmJ  and  exct»ao»je<t 
ia  ifuUl  and  tnony  twenlie  tymes  in  a  yejire  tlie 
jirofeit  therof  arrysintr  tn  his  ina'tie  beinsf  i*iy:ht 
tliousaud  anil  six  liutidrL'th  pounds  in  the  year 
which  for  twentie  ane  y^ars  by  |»ast  since  his 
tna'ties  happy  rt^uratiotie  woiild  haveumouot- 
ed  to  the  simrae  of  ane  hundreth  and  eijjbtie 
thousand  aud  six  hiUMlred  puunds  notwith- 
standing: the  i^eueralls  uvaster  and  oy*  otHcers 
of  the  31int  hes  not  im ployed  the'^stoek  of 
tnooey  soe  that  the  runtrey  hes  been  exiremly 
|»rejiidged  and  bis  ma* lie  ilefrauded  of  the  be- 
ue^te  that  would  have  arisen  iherby  if  the  slock 
of  ftiony  hade  bein  im  ployed  and  the  bulyone 
imported  coynied  anil  exehani^ed  so  many 
lymes  m  tlje  year  as  it  004* hi  to  tiave  Ixren  ac- 
cording to  his  mantles  appointment  and  y^r  for 
the  geneiMb  ra aster  and  (nher  officers  of  the 
JViint  ought  lo  be  lyable  to  bis  nm'tie  for  the 
*»amc  wilb  the  a'rent  of  the  said  yearly  profeite 
from  the  lir«t  terme  that  the  same  becam  due 
%%.*  hin  majestie. 

As  al:io  albeit  by  severall  lawes  and  acts  of 
parhameot  the  mony  of  this  kinjjdome  k  an- 
|»ointed  to  beof  equall  weiifhtand  fmnes  with  the 
lotniy  of  England  And  y*t  bits  ma^tie  baveinpf 
litter  the  example  of  his  ruyall  preilecessors  tor 
Uie  advancenifcnt  of  the  mony  tred  aud  com- 
merce between  the  tw»  kinjfdomes*  that  the  mo- 
tley eoymed  in  iMJih  shfiuld  he  i4*  a  like  weij^ht 
ami  tinnesand  tor  ihateffect  in  iheyear  Im.  wlc. 
Btxtie  two  havein^j^  cause*!  frame" ane  indented 
silver  Htandert  plate  of  sterlinjBf  liniies  and  ue* 
eiired  bv  hin  ma 'lies  seal  Is  a  part  wberof  was 
pent  hither  to  8eotIand  as  the  rule  wberby  to 
make  cssyses  of  the  fineness  of  silver  in  all 
tyme  hereafter  yet  noiwiibstanding'  the  mony 
of  this  Linifdome  since  that  tyme  bes  l>cen  minted 
farr  below  the  fmnes  ot  ihe  standart  plat  and  al- 
lieit  the  ofhcers  of  the  mint  ware  only  allow- 
eil  to  work  upon  the  remedies  in  caice  ca- 
fiualttie  that  the  sime  all  over  wndei  and  noe 
oy'wayes  yii  notw  ithstandioLC  they  did  not 
work  upon  but  even  below  the  remedies  soe 
that  ihe  Scots  c^yne  bein|j  two  grains  less  then 

•  ^^  iQ  the  Original. 


the  indented  staudart  pbte  they  wswaUIe  work* 
ing  upon  the  remeches  of  fitines  and  ther  Mng 
two  bundretl  «tons  of  bulbone  y^t  was  eoyniea 
yearly  the  profeit  arry&ixij^  to  the  otiicers  of 
ilie  Slidt  by  the  diflTerance  of  the  coyn  from 
ihe  tiitnes  ot  the  indetiled  sstimdart  plate  with 
the  benetita  vjf  the  remedicti  being  twelve  sbtl^J 
ling  upon  t lie  pound  ol'  sdver  wilt  extend  to 
the  sotiriie  id  ane  tbonsnnd  nyn  hnndreth  and 
twenUe  pound.>4  yearly  wliieh  from  Caudtgmis 
Im,  vi  e.  sivcoty  yeai-s  to  Lanibai»  im.  vi  c. 
ei^htie  iwa  year  fong  twelve  years  and  ane 
lialfe  W'ilJ  extend  lo  the  fH>tmie  of  twentie  four 
tliousaod  pound  for  which  ihe  generalls  master 
Hinl  other  otHcers  of  the  Mint  ought  to  Ix 
I  y  able  to  hi'^  ma 'tie  sin<^uti  in  ioiidum  with  tlu 
aVent  yearlj  after  the  first  termes  thai  the  soma 
became  due. 

As  also  albeit  it  be  contrary  to  the 
tnre  of  all  mints  thai  any  silver  thats  coyne 
should  pass  tbe  kings  yrons  without  ane  esse} 
therefd  iirsi  taken  yU  it  may  be  found  of  iinnei 
deliu^nible  yet  noiwitbstaniling  the  half  of  tha 
coyn  or  this  kiugdome  wilder  the  pretence  of 
silver  called  elush  heads  sucips  and  scropes  hetf 
beiii  melted  aud  printed  without  any  essey 
thej'oi  taken  soe  that  ther  being  two  hundred 
sttms  of  hullione  coyned  yearly  aud  ane  half 
y'rof  coynied  wiihoui  aneeasey  will  extend  to 
the  wiume  of  sivenlie  six  thouj^aiid  and  eight 
hundreth  pounds  yearly  wlitch  from  Caiidlsmis 
lin.  vi  c.  sivenlie  to  l^tnUas  Im.  vi  c.  eij^btie 
two  years  being  twelve  years  and  ane  halfe 
extends  to  tbesoume  of  ane  hundred  and  sixtie 
thousand  pi>und»  which  beitig  coynied  without 
ane  essey  as  said  m  eontiscat  to  his  tna'ties  use 
and  the  ofKcers  cd  the  Mint  are  lyable  to  his 
Tiia*tie  lor  the  sanune  sin^w/i  ia  niUdum  with 
th«  u^renl  thei  of  yearly  after  the  same  becam 
due  to  hisma'tie. 

And  in  lyke  nianer  albeit  by  the  eomou  law 
and  laws  and  acts  of  parliament  of  this  king* 
doui  It  is  expresly  prnvydit  that  noe  man 
should  have  ditferent  weights  and  that  the 
wsers  of  false  weights  should  he  severly  pu- 
nished and  for  the  security  of  tliii  m  eight  of 
mony  coynied  in  this  kingdom  his  niaUie  havo 
ing  al waves  a  pyil  of  weights  in  Ihe  cunzic 
bouse  with  which  the  olhcei*s  of  the  Mini 
ought  to  have  receaved  in  the  bullion  with  tlie 
dean  of  Guilds  weights  of  Edm burgh  which  m 
lour  of  th«  bundreth  heavier  then  the  kings 
weightis  ROC  that  (her  being  ane  tbouiiiund  and 
(i\e  hundred  stun  of  bullione  receaved  by  the 
general!  and  master  of  the  ftlintfrom  the  mar- 
chands  to  be  coynied  for  his  luaHieii  wse  these 
twentie  ane  yeara  by  past  since  bis  maHies 
happy  resturatione  will  extend  to  the  aoume  of 
fourlie  thousanil  pounds  for  which  thtv  are 
lyable  to  Ins  ma'ttc  &inguU  in  ioHdum  with  the 
a 'rent  yearly  frae  the  tyme  the  sameu  becam 
due. 

And  sickly ke  the  coyne  of  this  kingdoms 
being  cryed  iip  the  probi  of  the  exaltatione  be- 
ing three  sbimng  two  pennies  upon  the  unce 
wbicb  is  fourtie  pound  ti^n  sbilbng  upon  the 
stone  will  be  upon  four  buudretb  stoos  which  is 


I 


I 


187] 


94  CHARLES  IL    Proceedingi Mgaimithe  E&rl of  Ltuierdale 


eoynied  for  a  year  and  ane  half  since  the  mony 
was  cired  up  will  amount  to  the  soume  of  six- 
teen thousand  and  two  hundred  pounds  and 
the  profit  of  two  huudreth  stons  lyin^  in  the 
Mint  the  tyme  of  the  exaltatione  by  the  same 
rule  will  amount  to  the  soume  of  eight  thousand 
pounds  for  which  they  are  lyable  to  his  ma'tie 
with  the  a'rent  yearly  after  the  first  terme  the 
camin  bpcam  due  As  also  the  yearly  interest 
and  profeit  any  sing  by  the  bullione  payed  in 
to  the  general  Is  and  Mint  by  the  marchanu  and 
not  eoynied  within  due  tyme  seeiig  it  appears 
by  the  books  that  ther  was  a'wayes  three  huu- 
dreth stone  of  bullion  in  ther  bands  yearly 
and  not  eoynied  for  the  space  of  sixteen  years 
ever  since  the  year  Im.  vie.  sixtie  six  that 
they  began  to  coyne  being  twentie  thousand 
marks  yearly  will  amount  to  the  soume  of  two 
hundred  and  therteen  thousand  three  hundrcth 
thertie  three  pound  six  shilling  eight  pennies 
lor  which  they  are  Ivablc  '  singiili  in  solidum  ' 
to  his  ma'tie  with  the  a'rcnt  yearly  at\er  the 
first  terme  the  saroen  becum  due. 

As  also  albeit  by  many  laws  and  acts  of  parlia- 
ment of  this  kingdonie  It  is  declaired  that  in  re- 
spect the  silver  and  gold  put  in  a  fire  to  be  made 
bullione  to  other  new  mony  is  diminished 
wested  and  distroyed  in  the  translationc  by  the 
fire  and  procures  great  skeaih  and  hurt  of  the 
king  and  his  leidges  Therfor  it  is  statued  that 
nethfr  silver  nor  gold  that  bears  forme  and 
print  of  coynie  be  any  waves  meltetl  or  put  in 
the  fire  by  the  kings *coyniers  without  speciall 
licence  of  the  king  but  all  gold  and  silver  that 
is  coynietl  and  lies  print  to  be  (»bserved  and 
bolden  huill  amongst  the  kings  leidges  As  he 
ordained  it  to  have  course  and  the  contraveeners 
of  the  law  to  be  severly  punished  yet  notwith- 
standing the  genenitl  master  und  uiher  officers 
of  the  Mint  hath  melted  doun  the  number  of 
ane  hundred  and  iiitie  thousand  leg  and  rex 
dollers  twentie  thousand  ducatdouns  and  other 
moni-'y  by  which  a  great  part  of  the  current 
mony  ui  the  kiug<loine  hes  been  wested  and 
distroycd  to  the  great  ruiue  of  tred  and  impo- 
▼erishiiig  of  the  kingdome  which  ane  hundred 
and  fiftie  thousand  leg  and  rex  dollars  and 
twentie  thoiu«and  dovcatdouns  and  other  mony 
that  lies  hein  meUed  douu  these  sixteen  years 
bypiuit  will  amount  to  the  soume  of  fyve  hun- 
dred and  i'y\c  thousand  pound  for  which  the 
ofiieers  of  the  mint  ought  to  be  lyable  to  his 
ma^ie  '  singuli  in  solidum'  As  also  the  said 
Charles  carle  of  Lauderdale  did  receave  twise 
payment  of  three  years  sallarie  as  generall  of 
the  Mint  being  four  thousand  and  nyn  hun- 
drcth pounds  viz.  one  out  of  the  excyse  of  Edin- 
burgh by  a  precept  from  his  m*atie  and  ther- 
efter  did  most  wnjustly  take  payment  from  sir 
John  Falconer  laite  master  upon  his  maHies  ac- 
compt  of  the  lykc  soume  for  the  said  three 
years  sallarie  and  therfor  aught  to  make  pay- 
ment to  his  ma'tie  of  the  forsaid  soume  of  four 
thousand  and  nvn  hundreth  pounds  with  the 
%*rent  from  the  first  terme  after  the  said  double 
piymeDt. 

As  also  albeit  Um  common  law  and  acts 


[ISS 

of  parliament  of  this  ancient  kingdom  It  is 
statute  tiiat  if  any  iudge  or  minister  of  the 
law  take  buds  or  bry  bs  they  shall  lose  ther  ho- 
nour fame  and  dig^itie  and  be  oy'wayes  pu- 
nished in  ther  persones  fame  and  goods  yet 
notwithstanding  the  said  earle  of  LAodercfale 
ane  of  his  ma'ties  laite  generails  of  the  Mint  or 
thesaurer  deput  apd  ane  of  the  com  miss' rs  of 
the  thesanrie  and  exchequer  who  by  his  offices 
is  obleidged  to  comptroll  the  master  of  the 
Mint  his  accompts  hehaveing  a  speciall  trust 
and  sallarie  from  his  ma'tie  for  that  effect  yet 
did  take  from  the  master  the  soume  of  six  hun- 
dreth pound  sterling  as  a  wnder  brybe  to 
procure  allowance  and  payment  from  the  ex- 
chequer of  his  most  wnjust  and  exorbitant  ac- 
compts relaiting  to  the  Mint  and  coyne  pfre- 
ceeding  the  year  Im.  vi  c.  siventiefour  staiting 
his  ma'tic  debitor  to  him  in  fonrtie  tbousana 
pound  Scots  albeit  his  ma'tie  was  not  due  to 
iiim  a  sixpence  but  one  the  contrar  the  roaster 
and  other  officers  ware  debitors  to  his  ma'tis 
preceeding  that  tyme  in  great  soumes  of  mony 
upon  the  grounds  above  mentiond  As  also  bj 
the  common  law  and  laws  of  all  nationea  tns 
illicitintrnnd  extorting  of  lands  and  soumes  of 
mony  especially  by  a  superior  officer  from 
these  in  office  wnder  him  is  manifest  and  gross 
oppresione  and  severly  punishable  Yet  not- 
withstanding the  generall  of  the  Mint  did  rex 
and  trulde  John  Falconer  the  laite  wairden  to 
call  him  befor  the  privy  counsill  wnles  he 
would  grant  u  band  to  Alexander  Maitland 
counter  uairden  for  the  soume  of  twelve  thoo- 
sand  marks  upon  the  accompt  of  third  of  the 
reme<lies  that  ware  allcadged  to  be  due  to  him 
since  his  entrie  to  his  office  which  remedies 
did  truly  belong  to  his  ma'tie  Yet  notwith-* 
standing  the  uairdin  was  necessitat  to  grant 
band  for  eliven  thousand  marks  and  grant  ane 
dischar&re  of  a  thousand  marks  which  was  dus 
to  him  for  his  iies  And  albeit  the  band  was 
taken  in  Alexander  Mait lands  nameyetitappeirs 
to  have  bcin  to  the  generails  behott  they  h«iire- 
ing  cau(«c<l  wse  dilligence  upon  the  )>and  and 
put  the  wairden  in  prysone  whill  he  was  neoes- 
sitat  to  compone  and  transact  the  same  with 
the  generails  for  the  soume  of  siven  thousand 
marks  which  was  imployed  and  payed  for  ther 
wse  and  behoove  And  therfor  the  said  Charles 
earle  of  Lauderdale  Uicbard  lord  Maitland  sir 
John  Falconer  Archbald  Falconer  Alexander 
Maitland  and  Mr.  James  Falconer  as  air  to  the 
sM  deeesst  John  Falconer  his  father  laite  wair- 
den at  least  liehaveing  himselte  as  aire  to  him 
by  intromission  M'ith  his  airship  gpoils  at  least 
ex*er  to  him  at  least  sueces^or  to  him  in  bis 
lands  and  hcritadges  '  titulo  lucrative  post  COD- 
*  tractum  debit  um'  at  the  least  wniversall  in- 
ti-omitter  with  his  goods  and  geir  aught  and 
should  not  only  be  decerned  be  decreit  of  tli« 
saids  lords  of  counsel  I  and  sessione  *  sinffoli  in 
<  solidum'  to  make  payment  to  the  high  the- 
saurer  thesaurer  deput  and  Hugh  Wallace  his 
ma'ties  cash  keepere  in  his  ma'ties  name  and 
for  his  wse  of  the  rex'ive  soumes  of  monw 
rex'ivie  above  written  due  by  them  to  lui 


189] 


htrt^fw  Offieial  MahtnaHcni, 


A.D,  l68t. 


lor 

i 


Hi»'ti(^  lur  tlie  caiutGS  rex^irie  aboTe  in«Btionecl 
mill  of  ihe  a*reul9  therof  of  all  byj^ines  since 
tiic  rex^ive  tcrnics  fthnve  h%*\X  duua  tb&t  the 
taitic  bectmie  flue  to  Ins  ma' tie  as  afors'd  and 
ynirly  and  temily  in  lyme  romeing  dureiriff 
xiw  not  payment  tlu'rol'  Hut  also  they  haveing 
cuifiittiHl  siu»ti  itiai)iiV'!>t  j»TiJHs  ucts  !i«vl  uial^r-r* 
^  '  "  to   the  Mint   and   iher 

J  Mj^lit  to  be  remitleNl  to  the 

iiti,,,  .,,  ^., ,.  j^  »...Mn>^il  or  lonJ?«  of  iusticiarie  to 
be  punished'  aocordiiij,'  to  law  in  Ther  pernones 
nnil  *:oods  to  the  terror  of  otbei-8  to  cotnitt  and 
i\iHf  the  lyLe  In  tymecomringf  As  is  alleadped 
aud  aiirnt  ihc  chnL'^f  ^/wrn  to  tiie  said  Charlts 
earleof  Lau(lei>  «|  lord  I^Iaitland  hts 

•on   gruemH   oi  i   «if  John   Falconer 

Alexander  Maitbnd  9k\u\  3Ir.  James  Falconer 
eon  h\\\  iiirt'  to  the  toiid  wnqMI  John  Falconer 
hi^  Ifatbcr  at  least  bcbai^ein^liimselle  ai  aire  to 
liirii  or  oySvayea  reprcieuting  him  upon  aneor 
oy'  of  too  nas*ive  titles  above  sett  down  and 
Archbatd  Falconer  defenders  to  have  eoropeired 
befor  the  $aids  IoiyIb  at  ane  ceiiain  day  now 
bygnine  to  have  heard  and  seen  dccreit  and 
sentence  given  and  pronunced  a^t  them 
in  mainer  wnder  written  and  tberin  mentioned 
AS  in  the  priutt  sunionds  raised  in  the  «aid 
majtler  at  more  Icnth  ts  contained  The  s'd  sir 
George  Mckenzie  \\i^  ma'tiej^  advocat  compeir- 
and  pt^rsoually  with  sir  Patrick  Home  ndvocut 
lor  his  nineties  interetft  and  the  miid  Charlef* 
rle  of  Lauderdale  and  the  bM  Richard  lord 
aitland  gcnevulls  of  the  mint  X\wo  of  the  s'ds 
fenders  abf»>4-nanied  compeirand  be  sir 
eorge  l*f>ckhart  sir  John  Dairy  niple  sir  John 
IjHuder  Mr.  Walter  Prinsjie  and  Mr.  Thomas 
Skeen  ufhocat^i  ther  proVs  who  produced  in 
presence  of  the  saids  lord«i  ane  g-il^  and  cnmis- 
sione  g^ranteil  by  hisi  ma^ie  wnder  hts  httrhnes 

freal  Heah  to  and  in  Havuurs  of  the  sM  Charles 
iaitland  of  Hatton  (now  en  rle  of  Lauderdale) 
daitit  the  li>i.Hi.  a^x  iS  ^^^'^^mYyet  \m,  \lc. 
•ixtie  year  -  and  ordaJniug- 

the  Maid  Ch  '  :>!f  thedayea 

•f  hi«i  [ift>^Tue  ^enerijll  or  Mint  and 

kffice  of  c<vvnii)L'  \s\\\\  all  ii  ^  dijrneties 

privilcd|;i*  nod  casfialeties  iJierto  be- 

«m^in«^  an  iini^^ione  rrmrr  fii*h"  liearit 

witli  ane  other  j^ifi  uiid  corni^- 
bis  mn^tie  wnder  his  hitfliofs  «' 
the  twentie  third  day  ot 
9ixtte  eitthl  yrurs  raliticiii 
.  couiih^ioue  ktid  of  ni'W   m, 
latid    ordaining:   the   sM  \ 

ialtoti  nty\        -•■      'T  Lnutl*  » u.^n     i 
Iklaitlund  li  Wfull  son  non 

Ifcnd  and  L>...,   .  *.,(     "♦ -i -.  .i...:^,..  ..ti 

ti»e   dayes   of  ther    1 
nu^lii-H  y\\u\  :i(id    (M 

Itbch 

ndc;.     ,    :     .      •  ^     ^       ,^,  . 

}  extract  forth  of  the  books  of  privy   a»un- 
of  anc  htjnd  p*rantcd   bp   Ilavid   e*rle  of 

Kilii«lib  ^  '            M    GeAi*|;e  lord 

•r  K  <;of  BaJnunooit 

itr  Ah'xiiodci    .  if  flmikertouu 

iidiir^ilutgiiU-    -  :r  Ibtfwf  daitii 


dbe 

l^ted 

lui.  vie. 

r  rrift  and 


m  Uiriiiird 
lord  Mait- 


titie  sixt  day        ■ 


the  fourth  day  of  Augttst  and  twentie  sixt  day 
ol  tlctoWr  Im  ri  c.  ihrelie  siven  years  Wherby 
they  are  bound  as  cautioners  and  sorertie  for 
Nicolas  lir^at  and  John  Falconer  that  the  s'd 
Nicolas  liryat  and  John  Falconer  shall  fTaith- 
fnllie  and  trewly  ererce  the  office  of  niastere 
ofhisma^ties  conzic  bonstc  and  shall  loyallia 
ptrforme  the  duety  incnmhcnl  to  ther  ciiar^ 
ake  will  in  what  may  concern c  his  tna'ties 
interest  at  the  good  "of  (be  leid^es  And  ia 
special  1  1 1  tat  they  i«  hall  make  faith  lull  payment 
and  delivciauce  to  the  nmrclionts  inhringers 
of  the  bnllione  and  forraigne  coyne  be  ex- 
ch-iiH^L'  i\i  I  tie  stocks  p¥en  into  thera  by  tho 
siM  win  his  ma' ties  coy  ne  in  manec 

and  .  '.■  10  the  t>'me  accustomed  and  setl 

donn  by  the  orders  of  the  cunzie  house  as  th# 
s'd  eictract  wnder  the  hand  and  subscriptione  of 
sir  Peter  Waderbunie  ilsirke  of  the  sM  privy 
counsell   bearing'  the  samcn  to  be   reg'rat  in 
the  books  of  privie  counfiiU  u|ion  the  tenth  day 
of  J  ally  Im.  vi  c.  siltly  two  years  more   full  J 
bears  Toj^ther  with  ane'act  of  parlian>ent  daited 
tbetwelvth  day  of  June  Ira.  vi  c.  lixtie  ane 
years  order! njr  and  ^ommaadins^  Charles  Mait* 
land  of  Hattoa  general  I  of  his  majesties  l^lint 
in  Scotland  and  sir  John  Falconer  maister  of 
the  cunzte  house  joyntly  and  equally  to  coyne 
or  cause  be  conzied  in  turners  three  thousand 
stun  weij^fht  of  good  peuther  coj^per  whicli  waa 
to  be  provyded  and  iurnisht  by  the  saids  offi- 
cers equally  betwixt  them  without  any  mixtur 
of  brass  and  the  samen   turners  to  be  of  the 
same  eictrinsick  value  the  lastjurney  of  turner* 
was  viz.  ane  turner  weighting  fine  drop   ano 
halfe  (four  grains  less)  of  troyes  wein^ht  as 
the  said  act  of  parliament  wnder  the  hand  of  air 
Archibald  Primrose  clerk  re|reater  Ivtars  togi- 
theralso  with  anc  act  of  hit*.toa*ties  priry 
<!oiinsill  daitted  the  twentie  day  of  CIctobcr 
Ira.  fie,  sixtie  three  years  ordaining   the  tw<> 
mark  peices  the  one  mark  pcices  and  the  balfe 
raark  peices  to  be  coynedin  roaner  therm  spe- 
cified  viz.  to  pass  iii'li^^l.tncK-*  through  a  mrlne 
to  be  ciitted  by  cutters  to  be  troned  weighted 
and  justed  pevce  by  pfi^-e  and  to  be  nrmted  by 
peices  that  goes  by  swey  and  scrned  and  that 
the  irapr^inone  of  the  «iid  two  mark  peices  one 
itiark  aad  Halfe  roarit  peices  bearc  on  the  one 
syde  luH  maHie«  fece  and  etB-^s  cxprosi  m  the 
povnj«ihes  thwn   ment'    And  the  superscrm- 
tione  thenn  exprest  and  one  Oh^  other  ^y^^  the 
coat  of  armes  of  Scotland  witli  ane  eftcutchjon 
byitselfe  in  maner  v'in  specified  «nd  ordam- 
iiV  the  two  nmrk  peices  to  be  ten  deueirs  thcrr 
teen  jrrautis  nvnteen  proim^  and  the  woirht  of 
H-  .   ..  nrk    peice  of  fyve  denires  mx  ifittineK 
ant^  prouns  twelve  »cco!>d«  atid   \\m^ 
i^f  thp  half  markepeice  to  be  twodcntrrt 
crraios  ten  protmes  eiq:htccn  secoudt 
1  rvvitii   three  graines  uf  remedie   iipof^ 

each  t%vQ  mftlk  peice aise  weillliKht  a^  li^^f 
with  two   jjruifies  of  remedic  ujwi  eacli   c 
mark  poioe  and  half  JJ^^  *W*** 

heavietJie  saidjsspeci  UiiMrttlwsyi 

troned    weighteil  and  Jn^^l^  i^^?  ^f 
as  afbrs'a  ir»d  ordaining  flit 


i 


191J 


34  CHARLES  II.     Procetdings  against  the  Earl  of  Laudtrdalt     [^19t 


mony  to  be  of  aoe  exact  finnesand  aci*nrfIjii{^'to 
Uie  trae  stUndert  of  the  kinf^dutne  which  is  eliven 
deaires  fynne  out  of  the  tire  and  two  grains  ot 
remedie  ulse  weill  aboreas  wnder  as  the  said  act 
of  the  dait  forsaid  ^rnder  the  hand  and  sub- 
scriptionc  of  Mr.  Alexander  Gibsone  one  of 
the  clarks  of  secret  counsell  bears  to^ither  a^so 
with  ane  extract  furth  of  the  books  «)f  secret 
counsell  of  ane  band  <rrant^d  by  John  Falconer 
son  to  sir  John  Falconer  ane  of  the  masters  of 
his  ma'ties  Mint  as  princinall  and  James  earle 
of  Southesk  Robert  lord  Carnegie  Alexander 
lord  Falconer  of  Hackerton  sir  Alexander 
Falconer  of  Chalilk  Mr.  David  Falconer  of 
Glenqnliarq*r  as  cautio'urs  and  sovertics  for 
the  said  John  Falconer  daited  the  twentie  two 
day  of  February  1m.  Yic.  sixtie  four  yeares 
wherby  they  are  bound  and  obleidged  con'llie 
and  se^rallie'  that  the  s'd  John  Falconer  shall 
failhfullie  and  trewly '  exerce  the  office  of 
master  of  his  ma'ties  conzie  house*  and  shall 
totallie  performc  the  duety  incumbent  to  his 
cbarfi^e  alse  weill  in  what  may  concerne  his 
ma'ties -interest  as  the  good  ot  the  leidges  As 
the  sM  extract  wnder  the  h^nd  and  subscription 
of  Mr.  Patrick  Menzies  ane  of  the  clerks  of 
secret  counsell  bearing  the  said  Itaiid  to  be 
reg*rat  in  the  books  of  priry  couusill  upon  the 
twentie  third  day  of  February  lin.\ic.  sixlie 
four  years  l>ears  And  alse  produced  ane  Report 
of  the  officers  of  his  ma'ties  Mint  in  the  Tour 
of  London  to  hir  ma'tie  anent  the  silver 
monyes  of  Scotland  daited  the  twentie  day  of 
February  Im.  vie.  siventie  three  yeares  Item 
ane  extract  furth  of  the  books  and  recorcls 
of  privy  counsill  of  ane  order  and  warrand 
from  his  maHie  daited  at  Whythall  the  fyftcentb 
day  of  May  Im.  vie.  sixtie  eight  years  pro- 
rogating the  Coynes  of  the  copper  money  till 
the  first  day  of  August  Im.  vie.  sixtie  eight 
years  terminat  And  concloude<l  probation  an<I 
for  the  said  earle  of  Lauderdale  therin  de- 
signed Charles  Maitland  generall  bir'  John 
Falconer  master  John  Falconer  his  son  and 
John  Falconer  wairden  there  further  innur- 
radgement  in  his  ma'ties  service  i*atitieing 
and  approveing  all  and  wliatsoever  quautities 
of  copper  then  already  coyned  by  the  said  ge* 
Derail  and  maistersor  that  should  becoyoied 
till  the  said  first  day  of  August  sixtie  eight  years 
And  bv  the  said  ordor  authorising  the  same  and 
declaring  the  said  ordor  to  be  a  valid  and  sufii- 
tient  exoiKM-atione  to  them  of  ther  wholl  actings 
ip  ther  rex'ive  offices  anent  the  premisses  and 
commanding  theutid  warrand  or  unler  tobt*  re- 
corded in  the  books  of  privy  counsill  as  the  Kaid 
extract  wnder  the  hand  and  subscripone  of  Fa- 
trick  Menzies  ane  of  the  clerks  of  his  ina'tirs 
privy  counsell  daited  the  sixteenth  day  of  Jully 
Im.  vie.  sixtie  eight  yeurs  more  fully  bears 
with  ane  act  made  by  the  lord  comibsiont  r 
his  grace  and  lords  of  his  ma'ties  privy  cuiinsiii 
upon  the  thretie  day  of  March  Im.  vie. 
nventie  four  years  finding  that  the  commis- 
Moners  apfiohited  by  them  for  compairiog  the 
haitl  esseycs  of  silver  witbia  the  cunzie  house 
"d  4or  Dieltiog  all  the  sud  ^ipey  peaces  of  sii- 


ver  and  trying  tlie  fiiiness  of  the  same  have 
proceedit  orderly  and  circumspectly  with  good 
deliberatione  And  allowing  and  approveing  the 
report  made  by  them  theranentand  interpoDiDg 
therautlioretie  ther  to  and  drclairing  that  the 
geiierall  master  coyncr  wairden  counter  wairdeD 
sinker  asscyscr  and  all  other  officers  and  werk- 
Dien  of  hismu'ties  coyn/.ie  house  had  dewly 
faithfully  and  uprightly  wsed  and  exerced 
ther  offices  ilk  ane  of  them  for  ther  own  pairta, 
con  forme  to  the  acts  and  ordinances  made  ther- 
anent  in  all  points  and  exonered  them  ami 
every  one  of  them  for  ever  as  the  said  act  of  the 
daitc  forsaid  wnder  tiie  hand  and  subscripone  of 
Patrick  Menzies  dark  of  counsill  more  folly 
bears  Togither  with  ane  other  act  made  by  tlie 
lord's  of  his  ma'ties  privy  counsell  upon  the 
twentie  fif't  day  of  February  Im.  vie.  siyintie 
fyve  years  commanding  tlie  said  general!  master 
worker  the  wairden  essey  maister  compter 
wairden  the  graiver  and  other  members  of 
his  ma'ties  Mint  each  of  them  in  tlier  aeyerall 
stationes  and  diarges  to  proceed  to  the  working 
and  eoyning  of  the  four  mark  two  mark  one 
mark  lialfe  marke  and  fourtie  pennie  peaces 
according  to  the  tcnnor  of  the  wamuMl  moi- 
tioned  in  tlic  said  act  And  that  the  sinker  or 
graiver  of  the  Mint  doe  maik  graive  and  sink 
yrones  agreeable  to  the  circum8cri|itiones  anA 
impressioues  of  the  severall  spedes  theria 
mentioned  withall  dilligence  wheranent  the  said 
act  should  be  to  the  officers  and  aJl  others 
whom  it  concerned  ane  suffitient  warrand  as 
the  said  act  of  the  daite  forsaid  wnder  the  hand 
and  subscriptione  of  Patrick  Menzies  ane  of 
the  clarks  of  counsell  more  fully  bears  Tog;ither 
also  with  ane  prot^lamatione  containing  bis  ma* 
jefnicjs  gracious  pai  done  of  indemnitie  daited  at 
U  indsor  Castle  the  twentie  siventh  day  of  Jully 
Im.  vie.  siventie  nyn  years  togither  Lyke« 
wayes  with  an  exlioncn^tione  siipersCTyToi 
be  his  ma'tie  and  subscryved  be  tlie  duke 
of  Lauderdale  secret'\ric  dcclairing  command- 
ing and  ap;»ointing  ilie  coynings  of  all  cop|ier 
money  in  six  pennie  and  two  pennie  peaces 
within  the  kiiigdoine  of  Scotland  to  be  at  and 
upon  the  tenth  day  of  February  Im.  vie.  eight* 
years  terminat  and  concluded  pro  hac  yice  and 
for  the  said  earle  of  l^uderdale  therin  de- 
signed Charles  31aitlan(i  ^^laicrall  sir  John  Fal- 
coner master  John  Falcon  .-r  and  Alexander 
Maitland  wainlens  of  the  said  mint  and  ther 
sul)stiuits  ther  farder  incurradgement  in  hv 
ma*tit*s  service  His  ma'tie  by  the  said 
ratiticd  and  approved  all  and  whatsoever  <_ 
titles  of  cop{>er  then  already  coyned  be  the  i 
generall  and  maisier  since 'the  tirst  day  of  May 
Im.  vi  c.  siventie  siren  or  that  should  l>e  coyned 
till  the  tenth  day  of  February  uixt  thereftir 
Im.  vi  c.  eightie  years  authorising  the  same  aad 
dcclairing  the  said  writt  to  be  ane  valid  aad 
sulHlient  exoneratione  to  them  of  ther  wholl 
acting  in  ilu^r  rex'ive  offices  anent  the  pn« 
misses  and  farder  commanding  the  said  writt  to 
be  recorded  in  the  books  of  privy  counsill  as  tha 
samen  exoneratkine  daited  at  Whythall  tiM 
fourteenth  day  of  January  im.  fie. 


and&thei'S.for  Offtcial  Mahtnaiionn, 

TCflfs  recorded  in  the  bonks  of  privy  couiiRill  thrsniffT 
n^  n  Hclivprftnce  n\vw  (he  back  Vf*of  upon  the 
•ivcatrenth  day  ol  F*Miruflry  Im.  vi  c  eightie 
\eiin*  «nd  aue  net  extra citni  ifwitipon  wmk*r  the 
nand  and  suNscriptione  *d'Mr.  Alexander  Gib- 
■one  cirrk  to  ihe  privy  eaun^ill  tot*  tliu  tyme 
beans  Toffither  nfso  Cviih  one  proclaraatmne 
conceruin^  llie  coyn  daitcd  i\\v.  fifth  day  of 
March  uii.  vi  c.  eii^htie  one  yeani  ordaining 
und ''■-'' in.r  that  m  tyme  y'rafterthe  nnce 
of  I  iihl  he  ill  value  ihreejiound  four 

^li  I  :    mooy   aod  for  ibnt  eifect  ordnin- 

the  four  niarU  peit*es  which  then  ware 
at  fitlie  fhrcc  sliilllnp  four  pennies 
should  hi»  current  iherafter  nt  tiAie  aix  sluUin^j 
and  the  inferior  specie?  uf  thnt'COyne  pmpor- 
tiontahlc  us  the  s'd  proclamalione  of  llie  diiitc 
loused  more  fuJly  henrs  And  the  »aid  sir  Jcdm 
Falconer  compeii-and  lie  Mr.  George  Uftu- 
nerinan  und  Mr.  William  Flcicher  advocats 
his  i^ro'ri*  who  produced  in  preseure  of  thesaids 
Jordsi  nnc  gift  grantei\  he  liis  nia*lic  wnder  the 
the  priry  seaM  to  and  in  fivours:  of  thcfiM 
air  John  Falconer  daitcd  the  last  day  of  l}^~ 
.-,.., J, r.-  ini,  f  i  r.  and  sixtie  years  ratificini''  and 
w)^  two  former  Fifls  jcfranted  hy  his 
...  i  .iher  to  the  said  sir  John  of  the  office  of 
master  of  the  conie  house  of  Scotland  in  swn 
far  05  concerned  him  in  the  hutli  tcnnor  and 
contents  and  of  new  piveing  and  cranting"  to 
the  s'd  sir  John  Falconer  and  after  to  hi*  de- 
ceSse  to  John  Falconer  his  son  the  gM  office  of 
ii!B<?ter  of  hf'«  Ttm'tie*  coynic  house  In  the 
^md  to  he  eflTCeii  hythem 
:tr  anc  other  dureing  all  the 
^uycs  ft  iliiji'  liletyme  and  lo  t'ue  lonjjent  Ijfcr 
o**  them  tvro  tis  the  sM  ^if\  more  fully  l»ears 
And  the  sjiid  Mr,  James  Fal< 
}*en»onalUe  who  d  eel  aired  he 
Archbald  Falconer  and  M  - 
other  defundcTif    Him   >;  1- 

lepionaof  all  the  smf.  ,^ ;  -^ 

it;in!  is  wriit^i  abovL  iccil  by  them 

Alleadgtince*  and  r«  V  ex'ive  made 

and  projHjMcd  for  tliem  in  maner  wnder  written 
rrptvrs  d'tplyes  triply es  <juadrt!plyc»  qunio* 
/ivi?  wilder  \%  fitten  made  therto  witli  the 
umniondi  comptccmpt  hook^i  missive 
IrtK't:*  ctmlracts  hands  tickets  aod'wy'  writts 
atW  mmtioof'd  pmiUiri'il  ntul  d^  |"i*Ui'»nes  of 

A 

nJt^Hiu      \\\  II    iogiiiier 

M  ith  ihi:  eirt  I  me  against 

lll«.    ...k    ,1..  ..y..:rp     upon 

tht  ttecf  to 

th  nrctll 

!ie 

ry  ply  ativyned  liie  iiaKU  lonis  of  counwll  and 
a«-«naiie  decern  en  jiiid  ordtnTtr-;  the  snid 
Charle*  carle  of  Lauflerdak'  !  id 

Mr,  J amc«  Falconer  as  repi  mI 

deeeist  John  Falconer  Initc  v.  ;ardcu  hif»  farther 
Upon  anft  or  o^  of  th»*   paKHiv**   Itllps  ahoip 


A.  D.  JG85.  flOl 

John  Drummond  of  Lttndie  hi$ 
ma'ties  rhe^aurer  depnt  and  Uu^'h  Wallace  bit 
ma'<i«.-<t  ea«th  keeper  for  his  highnc«*?\Tst*  nod 
lirhove  uf  the  fiounie  of  twentie  shill 
of  free  profeit  upon  ilk  ptnmd  ot 
thousand  Rton  of  copper  Wfnlk  thcsfiuN  lortU 
ffinds  to  l>e  coyned  he  the  saiil  gcneraU  anil  of- 
ficers of  hiK  UKi'tifs  mint   in  ine  tir^'   r 

jurnay  more  nor  was  i\] lowed  he  ttie 
extendioHf  to  the  soume  of  two  hnudrti  V, , ,» ^ ,,.  .^^ 
four  thousand  pound**  Scots  mony  and  alsethe 
■aids   lords  deceniit   .in.f    mriniu-t   the   saida 
Charles  carle    of   I  liard    lord 

Maill  and  general  Is  mi  .    ritasii  r 

Mr.  James  Falconer  as  n  f 

deceist  John  Falconfr  his  ;  t 

upon   ane  or  oy'  of  the  ;  Is  above 

mentioned  and  Arehhahl  1  -  so  counter  1 

wairden  definders  (whom  the  &;iitis  lords  (indi 
Tyahfe  ^  ^in^ulos  in  fwiidum^}  to  make  payment 
to  the  saids  lords  high  thesauror  thesaurer  de* 
put  and  cash  keeper  alcove  named  for  hit 
rua'ties  wkc  and  hehoff  of  the  5:oume  of  twentit 
?fh»llmc  Hcots  of  free  mony  upon  ilk  pound  of  ' 
fyvethoii«anil  four  hundreih  fourtie  lour  ston^ 
ol'  ropf>cr  Whilk  the  saids  lords  fHndt  more  nor 
was  allowed  he  the  M' a rrand«i  the  second  copper 
jurnay  befur  the  art  of  indemnitie  extending  Ifi 
the  soume  of  eightie  Rivcn  thou^sand  oyn  hun- 
dretli  and  four  poimd  Scots  mony  with  threltt 
two  shjlliner  Scots  for  ilk  ))ound  of  three  Ihous- 
antl  nyn  hundreth  nyntie  nyn  slon  of  co^pef 
Whilk  the  Baids  lords  finda  to  he  coyned  olW 
the  act  of  indemnitie  extending'  to  the  soum# 
of  ane  hundred  and  two  thous^tid  threi 
hundreth  nynti«  eight  pound  cig-tit  shilling 
mony  forsM  And  lykcwayirsto  make  uayitioMi 
'^  '  fiaid  lord  hig^h  th e Jan rer  lord  the?saaref 
and   ^a^h  keeper  nbore  nametl  of  tht 

.'t'  of  nvn  thousand  fyvc  hundreth  threttt 

two  pound  lour  shilling- Scots  Ar  the  ditferenet 
found  be  the  «aids  lords  of  Uie  finnes  of  tfjt 
mony  coyned  be  them  from  the  fi noes  of  tht 
indented  atmidart  plate  appointed  bt*  his  ma^tit 
from  February  Iro,  tJ  c.  ku  ventie  lour  lo  Au- 
trust  1m.  vi  e.  ei^htie  two  years  and  of  tht 
Boumeof  ane  hundreth  fourtie  three  thousand 
siven  hundreth  twentie  six  pound  mony  fors'd 
a»  the  value  of  ane  hundreth  and  eig^htie  lwt» 
j  St  on  two  nnces'two  drops  of  ClusitcHs  headt 
tweejis  and  scraps  Which  the  saidii  lonls  flindt 
to  be  coyned  he  them  without  any  nssey  since 
the  act  wf  indemnitie  and  of  tlie  souniu  of 
fyve  thousand  Ihree  hundreth  eighlic  six 
fKiuutl  mony  forsM  as  the  profeit  arysioif  hy 
the  difference  of  the  dean  of  Guilds  \vci|t,diti 
made  use  of  by  them  from  the  Scots  jjyll  %<ii%i 
doun  hy  bin  maHie  and  of  the  soume  of  si^ 
thousand  and  six  hundreth  pounds  fot  tlk;  re* 
medirs  of  weight  of  the  silver  coyned  frorif 
rhe  fjr«t  day  of  53eplemher  Ihk  viC.  seventi^i 
three  veers'  to    the  first  day   of  Sej^temher 


Im.    vi  c*    eightie   two 
maintT  the  itaids  loni 
RHtd  C  'Imi-h-H  V7\v\i  of  ' 


\'tMjr'*    and 


m    fykt 
laini  the  ^1 
itanl  tor4 
ih  r  laif 

-oK:tuU\* 


lUl.,  Af» 


i} 


\ 


34  CHARLES  II.     Proeeedmgi  Mgaimi  the  Bnrl  ofLamierdak     [196 

tterliDgr  contained  in  the  ticket  g^rantd  beiir  Jobs 
Falconer  to  liim  with  thea'rentstberof  firom  the 
first  dny  of  January  Im.  vi  c.  sixlie  nyn  yevt 
extending  to  eight  thousand  nynf  hinidreth 
tiventie  eight  pound  mony  fbrsaid  And  tht 
saids  lords  have  remitted  and  beirby  remittt 
the  second  article  of  the  forsM  ly  beJl  mnent  the 
twelve  shilling  upon  the  unce  of  bullione  and 
the  eijght  article  anent  the  profVita  arryiiDg  to 
the  king  by  the  bullione  given  in  to  the  offioen 
of  the  Slint  yearly  and  not  coined  to  the  lord 
bight  thesaurer  the  officers  of  the  Mint  beiog 
rcgullarly  and  in  course  lyable  to  oompt  to  him 
for  the  samen  And  als  the  s'ds  lords  have  as- 
soilzied and  lieirby  Sbsolzies  the  said  Ricfaaid 
lord  Maitland  and  sir  John  Falconer  ffom  the 
points  of  the  fors'd  lybell  in  so  i'ar  as  coBoeniCi 
the  first  copper  jumay  And  assoilzies  ij»  s'd 
lord  Muitland  from  the  a*rent  of  the  kingf 
stock  of  twentie  thousand  marks  and  the 
annual  therof  for  tiie years  preceding  the  twentie 
third  day  of  September  im.  vi  c.  sixtie  eis[bt 
years  and  lykewayes  the  s*ds  lords  aaeolnss 
the  s'd  sir  John  Falconer  from  the  s'd  a'rent 
of  the  K*d  twentie  thousand  marks  and  an- 
nual Is  thereof  for  the  years  preceedinff  his 
entrie  to  the  office  of  the  master  of  the  Slint 
And  in  lykemainer  the  saids  lords  have  as- 
solzled  and  heirby  assohues  the  haill  deleiidcn 
above  named  from  the  a'rents  of  the  souma 
above  decerned  except  as  to  the  a'rent  of  the 
s'd  stock  of  twentie  thousand  marks  appointed 
by  his  ma'tie  and  four  thousand  nyn  hundreth 
pound  of  douUe  payment  and  the  six  hundreth 
I)ound  sterling  contained  in  sir  John  Fakouer 
ticket  to  the  earl  of  Lauderdale  and  decencs 
and  declares  the  s'ds  defenders  quy  t  therof  and 
free  tberfrae  now  and  in  all  tyme  cominff 
Becaus  the  tyme  of  the  first  calling  of  the  s'd 
action  and  cause  in  presence  «f  the  saids  lords 
the  said  sir  George  Al'ckenzie  his  ma'ties  ad- 
vocat  and  sir  Patrick  Home  advocats  for  bii 
highnes  interest  haveiug  repeated  the  Brsi 
article  of  the  fors'd  somonds  bearing  that  albeil 
by  the  comooe  law  and  laws  of  all  nationes  the 
coyning  of  mony  without  warrand  is  dis- 
charged especiallie  copper  or  black  mony  and 
by  the  laws  of  this  kingdome  and  particaHaii|y 
by  the  eighteen  act  paiTiament  the  third  king 
James  the  third  and  that  tlie  kinss  ma'tM 
haveing  since  his  resturatiun  granted  wanand 
for  coyning  of  six  thousand  stone  weight  ef 
copper  at  two  severall  limited  tymcs  Yet  tka 
generall  and  master  and  other  officers  of  tha 
mint  have  coined  iburiie  thousand  stone  weighs 
of  copper  and  every  pound  weifirht  of  copper 
haveing  yielded  to  them  thrcticvix  sluUiitf 
Scots  of  advantadge  they  most  be  lyabie 
*'  singuli  in  solidum'  to  refound  to  the  king  Ifaa 
some  ly  belled  and  declaired  his  ma*ties  ad* 
vocat  insisted  tor  the  fors*d  the  thretie  lonr 
thousand  stone  of  copper  coyned  by  them  si 
the  tymes  above  mentioned  more  nor  the  siS 
thousand  ston  allowed  be  the  warrand  extSBd- 
ing  to  nyn  hundred  seventy  nyn  thousand  wmk 
two  hundreth  pound  Scots  Against  wbioh  il 
wasallesdged  by  thss'dearle  of  LsuderdalsaaA 


195] 

to  make  payment  to  the  said  lord  high  the- 
saurer lord  thcsauier  deput  and  cash  keeper 
above  named  for  his  ma'ties  wse  and  liehoove 
of  the  soume  of  twelve  thousand  three 
hundreth  sixtie  eight  pound  threttin  shilling 
four  |)ennies  Scots  mony  as  the  profeit  of  the 
cxalta'ooe  by  crying  up  of  the  mony  arrysing 
from  the  bullion  payed  in  by  the  marcnands 
since  the  daite  of  the  proclamatione  and  not 
compte<l  for  And  als  of  the  sonme  of  twelve 
liundreth  twentie  eight  pound  tberteen  shilUng 
tour  pennies  Scots  as  the  profeit  of  the  exalta'one 
arrysing  from  the  bullion  and  current  mony  be- 
longing to  bis  ma'tie  and  lying  by  them  1  he  tyme 
el'  the  exaltatione  And  lykewayes  of  the  soume 
of  fourtie  three  thousand  two  hundreth  uglitie 
six  pound  Scots  as  the  twelve  shilling  upon  the 
unce  of  two  hundreth  and  eightie  ane  stone 
twelve  pounds  fyfU^en  wnces  and  ten  drops  of 
doUcrs  and  doucatdouns  meltcil  doun  from  the 
siventeen  day  of  January  lin.  vie.  slvenlie 
throe  y cares  untill  the  first  day  of  January 
Im.  VI  c.  eightie  two  years  And  lykewayes 
the  saids  lords  decernes  and  orduines  the  saids 
Churles  carle  of  Laud(^rdale  and  Richard  lord 
I^Iaitliind  generalls  and  sir  John  Falconer  laite 
master  of  his  ma'tics  Mint  sin^ulosia  solidum 
to  make  ]mvment  to  the  said  lord  hig^h  the- 
saurer lord  thcsairer  deput  and  his  ma'ties  cash 
keeper  above  namc<i  for  his  uisiHies  wse  and  lie- 
hoove  of  the  value  of  the  ordinary  a' rent  of  the 
fors'd  soume  ofiwcnlii*  thousaud  marks  allow- 
cil  and  payed  he  Xxva  inu'lie  to  the  saids  generall 
and  maister  of  the  jVliut  I'or  buying  in  of  bul- 
lion (und  which  uas  not  accoirdlngly  done) 
and  of  the  ainniul  oi'  the  aVentpro  ra/a  as 
followes  viz.  the  said  C'liarles  earle  of  Lauder- 
dale of  the  said  aVent  of  twentie  thousand 
marks  and  aimiiall  for  the  said  a'rent  yearly 
aUer  it  becom  due  from  the  year  Im.  vie. 
six  lie  two  yearK  And  that  the  stock  was  ap- 
pohited  by  his  ni a' lie untiU  September  Im.  vie. 
eightie  two  years  extending  to  the  soume  of 
twentie  lyve  thousand  six  hundreth  pound 
The  said  llicbard  lord  Maitland  the  other  ge- 
nerall of  t])e  Mint  of  the  said  a'rent  of  twentie 
thousand  marks  and  a*rent  of  the  said  aren't 
yearly  after  it  becam  due  since  the  twentie 
liiinl  day  of  September  Im.  vi  c.  sixtie  eight 
years  that  he  rceeavcd  his  commissione  And 
the  said  sir  John  Falconer  laite  master  of  the 
samen  a'rent  of  twentie  thousand  marks  and 
a'rent  of  the  said  a'rents  aller  it  becam  due 
yearly  since  his  entrie  to  the  office  of  the 
master  of  the  Mint  Ami  als  the  saids  lords 
decernes  and  ordaines  the  saids  Charles  carle 
of  Lauderdale  une  of  the  saids  defenders  to 
thake  payment  to  the  said  lord  high  thesaurer 
\o\\\  thesaurer  deput  and  cash  keefier  above 
named  foi*  his  niaHios  use  and  to  his  behoove  of 
the  forsuid  souiue  of  four  thousand  and  nyn 
humlreth  pounds  rceeavcd  be  him  in  double 
payment  of  his  said  tliree  years  sallarie  with 
the  value  of  the  ordinar  a'rent  thcrofi'forsaid  ex- 
tending in  all  to  the  soume  of  siven  thousand  nyn 
hundreth  twentie  ane  [lound  ten  shilling  Scots 
And  of  the  forsaid  soiune  of  six  hundreth  pound 


fffirf  other $,  f&r  Offtdal  Mi 

lord  Mnitlflmi  iher  pro'n*  above  nnmed  Primo 
tfiat  thcr  coiilil  be  tich*  proc*'a  snstained  a^H 
ibe  lord  Mailland  bccaus  he  b^ing  out  of  the 
tdogJotiTe  itii*  t^rnr  of  ilif*  raising  of  the 
■mnomh  was  cpitleJ  upon  siitie  it;tys  atid  ihe 
rfny  of  coniperranee>  is  not  yfteome  Ami  for 
the  carle  of  Laiiderdiile  and  oy'  dci'tndm's 
*l»<j\i    ,       ,  "   '  _  ihequantiHr      ^  ^s 

<if  1  lit  iiiPiistt'd  I  ^d 

thhi  i'nv  lit/itrnii  rs  iMJ:;iiL  tO  lit  ASSwI/^uni    i  ninO 

becatis  the  act  d'  purliament  founded  one  dis- 
ell«rg€tonly  thecoyniiig  of  black  money  hy  pn> 
▼at  pH«one$  or  incorporations  the  same  havting 
been  practised  by  some  touties  wlierof  ll»er  aie 
peaeea  yet  extant  And  iJie  act  was  made  for 
tlie  remedie  of  (hat  abuse  aod  wat  intended  in 
fftTOurfl  of  the  officers  of  the  Miut  and  not 
agaiati  them  and  it  can  not  be  instanced  that 
ever  Ihe  officers  of  the  Mint  ware  called  to 
queatiotie  for  auie  qiiantitias  of  copper  co^  ntetl 
nor  did  they  coHipt  tor  any  pro6t  and  eicre^ 
of  the  copper  coy  ned  the  same  hcinpf  alwnyes 
l»ooked  one  a  perqniffft  of  Iher  ot"  mIo 

Ibe  king  hes  gra ntcd  exonerations  '■  - 1  * 

TBllanifoy*  officers  of  the  Mint  inru  fn  the 
first  copper  jariiay  and  the  second  Terlio  Uie 
defc^n  are  sccnretl  hy  the  act  of  iudemnifie 
siTentie  nytie  wherbjr  not  only  these  are  in- 
dcmoified  who  ware  in  the  retiellionc  hm  alaoe 
allperaones  tn  pdhlict  tru4  nn  to  ther  tnalver- 
sationes  or  roisdimanrs  and  any  persuit  a^inst 
them  aither  adrendictam  pubhcnm  or  priiraiaiti 
is  di^har^  To  tvhicli  rt  wus  n^plyed  lie  the 
said  sir  George  M'Kenzie  his  ma^ties  adrocat 
and  sir  Patrick  Home  advocat  for  his  highnes 
mterest  perse wers  that  his  maUies  adrocat 
insists  primo  loco  agH  the  earle  of  Lauderdale 
and  the  other  defenders  called  and  as  to  the 
I  other  allcad^ances  the  lybell  stands  relevant 
notwithst  '  "  'icrof  Becanse  :s~  '  ■'  '^rst 
alled|[rea;,  wer  and  priviU  n- 

ingbint^.  ,,-.4,.,iand   the  same  ,-   ^.   ^,^1-^1 
lin|>orlaiice  both  as  to  the  kin?  and  the  sub 
jeclA  atid  the  act  of  parlia't  niaks  uoe  diNttBC^ 
tionc  hut  generally  prohibits  the  coymnsj  of 
black  money  without  warrand  And  it  is  the 
publict  interest  of  the  kinLfdome   the  cop(»er 
mony  should  not  he  coynd  hy  the  officers   of 
theoffictirs  M'  tlie  Mint  at  ther  pleasure  seeng 
by  hovi^  much  hiack  tuoney  is  incresed  so  far 
l^ttlie  !(tlvcr  coyo  shbaited  and  it  wold  be  of 
JBfctter  danger  to  allow  hbertic  in  this  to  the 
i^Dcers  tif  the  Mint    then   to  other  persones 
who    wmler    that  pretext  alight  coyne  alse 
I   much  black  mony  as  they  pleased  to  the  pre- 
judice  of  tred  and  riiiue  of  the  countric    And 


it  is  a  fVi 
act  of*  I* 
or    inctK,.-. 
filQiiv    ieeng 

simpV  and  -. 
far*! 

Ttni:' 


..11.--r|; 


c  that  the 
tiu  to  toiuii 
t  o yne     black 


nig  ot  black  mony  is 
I  it ^c barged  And  a*  a 
ers  of  the  Mint 
;.  wahoiii  unrrnnd 
'Ulehtm^elte  as  gene  rail  of 
lire  iitie  act  of  parliament  \u 
the  year  iin  w  c.  sixiie  aue  to  warrand  him 
iM  tb«  i€$t^t  ilie  olBccij  of  tho  Miat  to  coync 


three  thousand  stone  of  eop|ier  the  first  eoppef 
jurnay  And  ane  act  of  Cfiunnetl  tn  the  year 
Im.  VI  r.  siventie three  ior  coyning  other  three 
thousand  stone  the  second  coj^er  jurnay  Ani( 
it  can  net er  be  instructed  that  ibe  li»nner  otfi- 
ceriof  the  Mint  did  coyn  anie  coper  wiihout 
warran^l  and  the  reasonejs  why  they  **are 
never  petsewed  for  l. '    i  '  ruid*- 

beeaus  they  ware  al«  ;  I   dul 

not  betray  ther  trust  nuii  amuhL-ii  tin  uhilj  and 
cuutrev  bycoyning  of  moiH?  copper  mony  then 
was  allowed  by  the  warrantlt*  as  the  la  do 
olHceni  of  the  Mint  hes  done  And  efco  tho 
former  officers  of  the  Mint  dii)  not  pretend  to 
hare  tlie  benefite  of  the  copper  coyne  a*  11 
pertiulslt  of  ther  office  hut  only  by  a  parlicudar 
allowance  or  donatione  from  tlieltinsj  And  ih« 
earle  of  I*auderdale  himselfe  knowing  that  the 
copper  coyn  was  not  a  perquisite  of  there  offict} 
he  proci»r<^d  n  particuUar  gift  from  ihc  king  of 
the  lienefite  of  the  ane  halfe  of  the  copper  tha^ 
was  allowed  to  be  coyne<l  by  the  warrandd 
And  Ihcrforthe  'I"  '  in  swa  farr  as  ibey 
liavc  ex'ceedeil  1 1 1  I  >  aught  to  he  tyabtu 

to  the  kin^  sini^uii  lu  ^uHiium  and  cannot  be- 
long to  them  as  a  peniaisite  of  ther  office  Ami 
as  to  the  second  alleadgance  founded  upon  the' 
e.vonerntiooes  it  was  replyed  that  the  exoner- 
ation es  cannot  liberal  the  defenders  from  the 
abuise  and  mahersatione  committed  tn  re- 
latione to  the  copper  coyne  at  the  last  as  in 
what  was  coyned  more  then  what  wa«  al-» 
lowed  by  the  wanauds  becaos  the  exonera- 
lioncsrelats  to  the  severall  warrands  grantetl 
for  coynifig  of  copper  money  the  ane  in  the 
year  1  m,  vi  c.  and  sixtie  six  years  and  the 
other  in  the  year  Jm.  »ic.  eigbtie  years  thd 
first  in  the  ^id  year  ]m.  %i  c.  sixtie  six  re- 
lailttig  to  the  act  of  parliament  in  the  yeare 
Im.  vie.  sixlie  ane  for  coyneing"  three  lliou- 
s&nd  stone  of  copper  and  flie  other  in  the  s*<f 
year  Im.  vie.  eightie  rctaiting  to  the  net  of 
codnsell  forcoynmgoy'  three  thousand  stmte 
And  albeit  his  ma'tie  did  nttit^e  atid  approve 
the  quanbties  of  copper  already  eoyticd  or  that 
should  be  coyned  betwixt  and  the  day  theria 
mentioned  and  exhoner.'i  the  officei^  «i*  the 
^fitit  of  ther  wholl  actings  in  iher  rex\ve 
<»i  i!  the  premisses  Yet  thai  cane  ntily 
U  Hid  of  the  coyningof  the  qininUtic' 
of  coppfji"  contained  in  the  acts  and  warrand* 
grantef)  for  ih»t  eHeet  to  which  these  warrand* 
«l                   '  :ie  hut  can  never  be  ex- 

ti  rat  them  from  the  abuise 

uiitj  HI  tiiLoauntiev  Lu  coyning  more  co|»er 
mony  then  they  ware  alloweil  and  which  is  soc 
liirr  contrar  to  h' -t--t'ft  of  the  great  pre- 
judice thai  the  '  uiint^  by  soe  much 
copper  mony  i-.  l  .  „_^vJ  by  many  acts  of 
parliament  even  wnder  the  paiue  of  death  And 
u  is  %ery  wei  1  knowen  to  such  exoneriiiionei 
tmiy  Iw*  procured  upon  a  mi«rcpreeieniati<uie  by 
the  laws  and  customs  of  all  uattooes  nf»c  i^ucn 
gilts  of  exonerate  one  are  sustJ«inf>d  *  nise  pre- 
♦  ii('n  veritate  in  tanium*  and  therfor  untetf 
t  t.vtioneM  did  bear  exprcstj  tfae 
ti               ocaand  mftlversaitiuiiei 


J99J 


34  CHARLES  Li.    Proceedings  against  the  Earl  0/  Laudardak     [100 


Aud  that  Aoiwiibstandint;^  tlie  kinffs  ma'tle 
had  exoDred  them  *  ex  certa  scientia'  no  such 
gtineraJi  exoneratione  cane  be  sustained  to  up- 
perat  any  furder  then  to  exoner  thein  as  to 
ther  acting  in  relatione  to  the  six  thousiand  ston 
allowed  to  be  coyoed  by  the  warrands  And  in 
the  caise  of  sir  Walter  Seatoue  uho  was  lurks- 
ruan  of  his  nia'ties  custonie  house  ulbeiihe  hade 
coupted  to  the  excheqV  and  obtained  ane  exo- 
neratione  and  discharge  from  the  kiujr  under 
tlie  great  seall  yet  therafter  beiu^  called  to  ane 
accoiupt  by  vertue  of  a  cumissione  from  the 
Kiu^  and  it  being  found  that  the  king  was 
prejudged  in  the  accompts  made  notwith- 
»ta..(!iijg  of  the  dischargi'  he  wtxn  necessilat  to 
pay  in  to  tlie  king  fy\e  thousand  pound  sterl- 
ing At  nhich  tyiue  the  lord  thesr  dejmt 
in  as  sent  ns  ane  of  the  commissionevs  and  this 
same  defence  being  proponed  before  thecom- 
uiissiouers  appointed  by  his  ma'tie  for  tryall 
of  the  Mint  They  jTand  that  these  exonera- 
tionesdid  only  relaite  to  six  thousand  stone 
which  was  allowfni  by  the  acts  of  parliament 
and  counsill  to  be  coyned  within  the  ty  me  con- 
tained in  the  war  rands  and  prorogationes 
nien*t  in  the  exonerationes  And  therfor  was 
not  ane  exoneratione  as  to  what  copper  was 
more  coyned  then  the  quantities  contained  in 
the  warrands  to  which  they  particullarly  re- 
laite as  appears  by  the  report  which  is  ap- 
proven  by  his  ma'tie  And  as  to  the  third  al- 
icadgance  founded  upon  the  act  of  indemnete 
it  was  replved  that  the  act  of  indemnitc  can 
oot  secure  tnc  officers  of  the  Mint  agaiust  the 
abuise  and  malversationcs  committed  by  them 
Prinio  becausit  appears  by  the  narrative  of  the 
act  that  the  occatione  of  the  makein^  therof  was 
twofold  ?iz.  The  tresonable  prinri|des  of  some 
pcrboncs  ag't  the  goVinent  both  in  church  and 
state  and  the  rebellions  and  disorders  that  enswed 
u)>(»ii  the  same  one  the  auc  hand  and  one  the 
otiK  r  tlie   hiimorons  factions   of  discontented 

Iinii.Lcs  uli:»  wndcr  the  pretence  of  gri^auccs 
jaii  i;iisi-c;»ri'senlcd  the  pnblict  judicatories 
and  hail  tlicrby  waikueJ  his  rna^ties  aiitho- 
retie  reiirchcuted  in  the  same  and  that  his 
ma' lie  was  gratlously  pleased  to  reclainie  and 
M'cnre  both  TliHrforhis ma*tie  u\m\\  the  nar- 
rative forsM  allenarly  doth  by  the  sM  act 
seciirr  btith  the  persones  dissatislied  to  the 
govortnriit  and  the  governors  and  ministers 
uud«.r  lii->  ma^tie  in  iiiuiner  tl.crin  mentioned 
And  Ivkwayes  doeth  indcninilie  and  secure 
bis  ministers  and  pcrsoucsinti'iated  hy  him  in 
relatione  to  any  tliiu^  (lone  by  t!iem  in  his 
majesties  service  and  |K»rsewanee  of  the  same 
and  asserting  his  ma'ties  authorety  as  appears 
Inith  by  the  <«M  act  and  a  pap^r  printed  about 
til  at  t/me  intituled  The  Narrative  ut  his  3Ia'tIos 
IVcceediiigs  and  Privy  Counstilj  I'rocccdini'b 
in  Scotland  whitih  bcHiir  the  only  rl  .i^i^neuf  the 
fc'<f:ictaud  hisnia'tieiindthecownov'!  i.avin;:  noe 
iithtr  thing  in  ther  conteinplaliune  it  is  wnjnst 
and  inconsistent  with  hunour  ofthe  counsell 
afid  ciiunselloi-s  that  it  should  be  strcached  and 
•xtt'iided  to  any  othi-r  crymcs  and  deeds  that 
i^u  nut  bti  kaiJ  to  havti  baeu  done  upon  gcca- 


slono  ofthe  ti'ubles  and  out  of  zeal!  a^ost  dis- 
satLstied  persones  for  mantaiuing  hia  maUiei 
authoretie  and  which  he  liad  connexoue  with 
or  in  relatione  to  the  trublcs  But  by  the  con- 
trary was  done  against  his  ma'tie  and  to  abuise 
him  wnder  trust  such  as  the  malversa'uo  in 
the  maitter  ofthe  Mint  which  being  a  part  of 
his  ma'tes  stock  and  soumcs  for  defraying  the 
necessnr  chargts  of  the  ^overment  it  at  any 
tyme  aught  to  be  most  faith fullie  and  honestly 
manadg^  in  tyme  oftrubles  And  therfor  the 
statu  torie  part  of  the  act  cannot  be  extended 
beyond  the  narrative  and  premiss*  thereof 
which  was  the  causa  inductiva  of  his  ma'ties 
granting  the  act  of  indemuitie  2.  These  words 
that  persones  in  a  pnblict  statjone  and  trust 
should  be  indemnified  and  generally  all  such 
as  are  lyable  to  any  pei-suite  for  any  cause  or 
occasione  relaiting  to  aniu  publict  adraiuistra* 
tionc  by  contriveauces  actings  oppositiones  or 
oy 'vvayes  preceeding  the  daite  of  the  s'd  act  ar 
<  verba  hanonima*  (sic  orig.)  and  such  wohli 
aught  to  be  interpret  and  restricted  secundam 
subjectum  (sic  orig.J  materiam  And  therfor 
seeng  in  the  latitude  of  the  s'ds  words  they  may 
be  comprehensive  of  sh'rifsshirriff  deputaclarki 
comissars  and  all  such  persones  ^fhich  cao  not 
be  denyed  in  some  sence  to  be  in  publict  sta- 
tiones  and  trust  And  it  ware  absurd  to  say 
that  such  persones  were  indemnified  for  tber 
unfaithfulness  and  malversatione  in  ther  sta- 
tiones  and  trust  the  saids  words  cau  be  na 
waves  understood  but  to  secure  officers  of  stale 
andf  such  persones  as  are  in  ther  statiooe  as 
counssellors  and  officers  or  as  members  ofthe 
armey  be  questioned  as  haveing  an^r  wayes 
overacted  or  done  amiss  in  the  tyme  oftrubles 
out  of  zeall  and  for  promoting  his  ma'ties 
authorety  and  service  As  also  persones  in 
publict  trust  according  to  tlie  ordinare  accep- 
tatione  of  the  word  are  only  to  be  wnderstood 
such  as  are  under  his  ma  tie  and  his  interest 
and  trust  in  the  adininistrationc  of  the  gover* 
inent  of  the  kingdonic  civell  ami  militarie  as 
the  judicators  aud  specially  the  counsel!  and 
ofiicers  of  state  and  commanders  of  the 
forces  se^ng  such  persones  lies  only  such 
publict  adininistratione  as  the  interest  of  his 
ina'tic  and  of  the  wlioU  kingdome  directly 
and  immediately  and  vet  the  officers  of  stals 
who  are  indemnified  by  the  said  act  as  to  ther 
publict  actings  in  capacity  of  counsellours  ars 
not  indemiiilie<i  as  to  ther  privat  actings  and 
malversations  if  they  ware  guilty  of  any  relait- 
ing on  lie  to  his  ma' lie  and  not  to  the  trubles  aod 
publick  And  it  cannot  be  said  that  either  ih$ 
commissinnei-s  of  the  tliessaury  or  thessaurer 
depot  or  sir  William  Sharp  cash  keeper  or  any 
haveing  interest  in  the  Exchequer  are  by  th9 
act  of  indemnitie  secured  and  exempted  from 
counting  and  nialversa'one  in  their  trust  if 
any  should  appear  S.  The  act  of  indemnity 
bears  this  express  clause  yt'  it  should  not  Iw 
extended  to  such  crymes  as  never  wses  to  hrn 
comprehended  under  generall  acts  of  indenmitM 
But  80  it  is  the  crymes  and  malversationcs  com* 
milted  by  anio  of  the  kings  servants  and  offi« 


301 


and  otktrt.for  Official  Matetrsationt. 


A.  D.  1682. 


laok 


cert  eepeciiJiy  in  relutJoDc  to  hib  iii&'ties  re- 
Teuewes  aud  jmhlicl  moucy  such  as  the  Mint  is 
are  not  in  wse  lo  be  conmi  ebemleil  under  ilie 
acts  i>i*  mdetunilie  For  tlie  act  ot'obliirione  and 
iiid^mnitie  by  kin^  James  the  fift  parltanieni 
MJCt  caput  iiyntie  two  and  act  wf  tndeinuity 
be  ijueeu  ^\\xv'y  paritameDt  Dyiilh  cliapler  tbe 
maventbb  !»esivt^u  reloits  oufy  to  crymes  ca- 
uiilted  dumu^  tUe  truMes  in  the  counirej  and 
rttK'lJionv  but  not  at  alt  to  abuses  or  iiiahersa^ 
tioLies  cunintttterd  by  the  kin^s  ofiicers  and  ser- 
Yttntsiti  tyuitf  of  pt^ace  especially  in  relatione  to 
I  he  kint^  s  nvenew  publict  mony  or  wbut  con- 
cei'des  the  ^lint  And  the  laU  act  ot'indeinnitie 
in  the  )ear  Im.  vi  c,  sixiie  two  bears  aoe  ex- 
press exct:pttoue  of  all  publict  moneys  iutro- 
milted  *^  itli  he  any  of  his  majebties  officers  tor 
whii'li  they  bade  not  dweiy  counted  and  re- 
ceared  discbarg^es  tlierrif  by  such  as  pretend  lo 
iiare  authoriiie  lor  the  tyme  to  doe  the  same 
J^y  wbich  it  Is  evident  that  the  crymes  and 
DialversatioDcs  committed  by  any  of  his  inu'tie!« 
ijtBcers  or  servants  in  relaiioue  to  bis  4na'lies 
rcrenncij  and  publict  nion)  such  as  the  3Iiutis 
are  never  comprelif  tid  it  wuder  the  general  I 
acts  of  iDdeninity  whtch  doe  only  properly  re- 
laite  to  the  trableii  in  the  cuntry  4"  The  s'd  ac-t 
of  indemnity  as  all  former  acts  of  indetiiuity 
bears  ane  express  exceptioite  of  all  privat 
crymes  and  albeit  ilie  officers  otthe  Mint  may 

{jreteiid  to  be  pei-sones  in  publict  statioties  in  a 
airge  sence  au  all  persones  wndcr  his  ma' tie  may 
besMas  customers  collectors  and  such  Ivke 
yet  it  can  not  be  said  to  bo  in  a  publict  statione 
relaiting-  lo  the  government  and  a  pnhhct  atU 
inini^rutionc  of  the  kint,^dome  wnder  bisma'be 
and  to  have  been  persewein^  and  promote 
ting  his  ma'ties  service  is  onlie  meaned  and 
Intended  bv  the  &M  act  seein|;  the  said  Mint 
and  Mini  house  and  officers^  of  the  same  does 
not  properly  and  imcdlately  conceroe  the 
|yovtrnmeut  but  only  consequentially  as  to 
ult  bis  lua'ties  other  concerneti  for  it  is  a  par- 
licnllar  interest  of  his  maHies  belonging'  to 
hltn  by  his  prera|rati¥c  and  the  officers  therof 
iher  malversaiiones  in  thtr  respective  stationes 
are  not  malvej'sutiones  in  any  publict  statione  or 
trustor  admini^tratione  belont^in^  to  tlie  wholl 
kin^donie  but  prirat  delicts  ami  such  as  have 
no  relatione  uather  to  the  government  but  con- 
sequentially or  to  the  trubles  soe  that  they 
irould  have  been  vvbitlter  tber  bad  been  any 
Irnbles  or  not  and  ci^nsctjuenlly  as  to  all  other 
privat  crymcs  which  are  not  occasioned 
by  thy  trublts  was  ever  excepted  out  of  acts  of 
iiidemnitie  And  in  speciall  out  of  the  %\\  kite 
act  the  ireacbcrie  and  malvcrsatione  of  the 
officers  of  the  Mint  in  so'  sence  reasone  or 
justice  can  be  tbou^lil  to  be  iudeniifietl  y'by 
5to  The  same  defence  being  proi>oned  by  the 
officers  of  the  Mini  befor  the  commi^ione'rs  ap- 
pointed for  tryall  of  the  Mint  a^  to  wbicb  the 
(;i>inmi«^ioners  ware  of  tlie  oj^pinion  that  the 
act  of  indeinnitie  being  only  ^raatcd  to  those 
that  bad  acted  in  or  against  the  publict  gover- 
itient  of  the  kingdom  and  not  the  deeds  of  mal- 
tarsatione  in  iny  pirlicullftt  or  pecalliitr  statione 


ubicli  hade  no  connettione  with  of  in  relation©  j 
to  the  trubles  or  disorders  of  the  countrey  iik  I 
maitters  relailiu^  to  the  publirt  govermeat  of] 
till*  kin^dome  as  ap[)ears  by  the  report  whicU  I 
itt  appro  yen  by  bis  majestie  H  herein  lo  if  waft  J 
duply ed  by  the  s'ds  earl  of  Lauderdale  hiftl 
priors  above  named  that  this  proces  is  not  onli« J 
of  great  mifiort  as  to  the  p«i^sones  ccnreene4;J 
but  also  as  to  the  preparative  if  the  kings  re«' 
peaCed  exonerationes  and  ane  act  of  iodemottjT  ! 
doe  not  secure  persones  in  publict  offices  as  to^  j 
tlier  maber£atioue  in  ther  offices  Ami  ss  to  tha] 
act  of  parliament  founded  one  Anss^t»  it  con> 
c ernes  not  the  subjt'ct  of  this  article  for  Uie 
was  a  kind  of  black  luony  which  was  not  [ 
per  money  2o  Albeit  the  act  ware  to  be  wnder*  [ 
stood  of  copper  nioney  yet  it  does  not  eoncerD#  J 
the  officers  of  the  Mint  who  are  the  king«  w&rm\ 
vunts  in  that  office  hut  only  pri vat  persones  oiij 
incorporationes  co>iitn^  black  moiiy  without f 
warrand  as  is  clear  from  the  words  of  the  ac^j 
and  from  custome  which  is  the  best  interpretee  ] 
of  the  law  For  it  cannot  he  instanced  that  anyi  I 
officer  of  the  Mint  was  ever  drawne  in  ques-»^j 
lione  aither  as  to  a  civell  or  criminall  effect  for  f 
exceeding  in  the  qnaotitie  of  coynadi^^e  And; 
the  fors'd  act  of  parliament  graufs  power  t9  j 
shirriffs  to  coovecu  the  transgressors  beibc 
them  which  inaks  it  t*vident  that  the  act  is  i 
applicable  to  the  officers  of  the  Mint  and  the 
Mmt  of  this  kingdome  is  also  exact  in  its  con* 
stilutione  as  in  any  oihcr  nation  for  tbtT  artf  J 
juruayes  made  of  the  silver  coyn  ;uid  accump%] 
made  therof  lo  the  exthcqntr  But  as  to  thcfl 
coynad^e  of  copper  iilbeit  ilvur  be  nece-ssity  o£  j 
a  war  rand  for  the  peaces  to  Iwj  coyned  the  eha^*.  J 
racier  and  impressione  the  cjttrin sick  value  a|1 
which  the  same  is  to  pass  and  the  tyme  XomX 
coynadge  yet  tber  is  noe  litnitatlon  as  to  thft  [ 

3aantilie  except    the    kiDyfdoine  he  overbur^^j 
eued  with  copper  mony  And  in  tins  caicethfti 
copper  mony  and  iptanulic  thei^f  coyned  ii|l 
the  Hrstjurnuy  was  fouud  too  litle  for  the  ws#1 
of  the  cuntrey  insof^furas  the  warrand  {^ranted  ] 
by  the  counsell  for  the  last  copper  jurnay  pro- 
ceeded   upon   ane   re  pre  sen  tat  ion  e    from     thi 
royall  burrows  who  ware  most  concerne<l  i 
ibc  coynndg'e  of  more  copper  money  was  foC  | 
the  acfvanta^e  of  the  kingdome  as  appears  '  ~ 
the  act  of  counsell    Terlio  the  general!  oft 
Mint  lies  right  to  the  half  of  the  benefite  of  the 
half  of  the  copper  coyne  by  gift  from  hiii  uia^tiol 
and  the  rest  of  the  officers  of  the  3Iint  bnv^J 
rirrht  to  the  other  hallb  as  a  perqnisit  of  iheftj 
office  and  since  ever  the  king  hade  a   MinM 
Uiey  never  compted  for  tlic  bcuefit  arrysiagj 
from  the    coppex  coyne    Secuudo  albeit  thu 
coynadjEfe  of  more  then   was  contained  in  1 
warrand  ware  a  cryme  yet  the  defenders  ar^l 
secured  by  two  exonerationes  And  wheras  it  i 
all  cadged  that  the  same  can  not  be  extende 
beyond  the  warrand s  to  which  they   relaiti 
Anss^rs  it  is  necessary  that   the  exoueratioD^I 
should  relaite  to  the  warrand  because  the  kin^ 
in  the  exooera^one  was  to  tenuinat  the  lyraeof 
coynadge  But  after  relatione  of  the  warrand  and 
terminatiotie  of  the  tyme  the  exooeratioae  rutfi 


3i  CHARLES  11.    Proeeedmgs  mgamsi  tke  Earl  of  LimArMe    [904 

liable  to  any  penotte  for  any  cause  or  ocisasione 
relaitingf  to  any  publict  adiDiniatratione  by  con* 
tryveances  actings  ^:c.  And  discbarginj;  them 
either  to  bepersewed  ad  ▼endictam  publicam  or 
privataiD  and  all  judges  are  ordained  to  inter- 
pret the  same  with  all  possible  latitude  and  Ak- 
vour  And  wheras  it  is  alleadged  that  albeit 
the  defenders  be  secured  be  the  act  of  in- 
demnitie  as  to  any  punishment  yet  they 
must  be  lyable  for  damnadge  and  interest 
Anss'ris  this  persuit  not  beini^  founded  one  any 
right  the  king  bes  juredebiti  but  upon  a  cry  me 
be  excess  of  coining  of  copper  contrarie  to  war- 
rand  which  inters  ooniiscauone  as  the  crymeof 
malTersatione  is  extinguished  by  the  act  of  in« 
demnitie  so  that  the  damnadge  and  interest  ar* 
rysing  therefrae  is  also  taken  away  To  which 
was  triplyed  by  the  s'd  sir  George  M^Kenseie 
his  ma'ties  advocat  and  sir  Patrick  Home  ad- 
vocats  for  his  highness  interest  That  they 
oppon  ther  former  reply  as  to  the  exoneratioiie 
and  act  of  indemnitie  and  it  is  cleared  bv  the 
act  of  'parliament  that  the  coyning  of  black 
money  witliout  warrand  is  simply  and  abao- 
lutely  dischaived  and  that  wnd«r  the  paiae  of 
death  And  Uie  law  make  noe  disunethne 
whither  the  same  be  done  by  the  offioera  of  the 
Mint  or  oy'  persones  but  all  personea  what- 
soever are  discharged  to  coyn  black  mony  and 
*  non  est  distmgueudum  ubi  lex  non  distinjifiiit* 
And  thereasone  why  non  of  the  former  ofimn 
of  the  Blint  hes  been  called  in  questione  for  ex- 
ceeding the  ouantitie  of  copper  mony  allowed 
to  be  coyned  hes  been  because  it  seems  they 
ware  alway  es  honest  men  and  hes  not  exceeded 
the  warrands  Neither  can  it  be  instructed  that  H 
they  did  exceed  and  being  conveened  that  they 
ware  assolzied  upon  that  pretext  that  they  ware 
the  kinjTS  officers  of  the  Mint  who  certainly  as 
they  hare  the  greater  trust  so  they  ough(  tha 
more  to  be  severly  punished  if  they  transgress 
And  albeit  sliirriffs  and  baiilics  of  borrows  bjr 
tlie  act  are  appointed  to  make  inquisitione  if 
any  such  striking'  be  made  yet  it  does  not  fol- 
low that  the  act  should  be  therrrtbre  understood 
of  prirat  persones  or  incor|>oratioii(.'S  Uiut  strides 
black  mony  but  because  the  co>  uing  of  black 
mony  is  so' great  a  prejudice  *^to  the  cnntrey 
and  tread  Therfor  the  sliirriffs  and  baillict 
ef  borrows  are  appointed  to  take  inquisitione 
tberof  that  the  stnckers  be  broghtto  thekin^ 
and  punished  whither  thoy  be  officers  ofth6 
Mint  or  oy'  persones  And  in  swa  f'arr  as  the  offi- 
cers of  the  Mint  exceeds  ther  warrands  they 
are  but  as  private  persones  and  aught  to  Ml 
punished  accordingly  and  the  reasone  why 
ibrmei'ly  ther  hade  been  no  coinpt  made  to  ibe 
exchequer  of  the  copper  coyn  was  because  pri* 
rat  persones  nlwajes  <fott  a  right  to  what  was. 
allowed  to  be  coyned  wjjp  durst  not  exceed  ther 
warrands  but  certanly  if  they  had  exceeded 
ther  warrands  they  ware  alviays'  comptable  tit 
the  king  for  the  same  And  in  the  coynailge  of 
copper  ther  is  an  essey  for  a  warrand  of  the 
peices  to  be  coyned  charecier  impressione  and- 
mtrinsick  value  at  which  the  same  is  to  paai  86 
much  more  as  to  the  quantity  that  the  cantregr 


MS] 

OD  a  distinct  narrative  vis.  the  kings  ma'tie 
for  tarder  incuradgement  of  the  officers  of  the 
Mint  in  his  service  ratifies  and  approves  all 
and  whatsoever  quantities  of  copper  that  ware 
coyned  or  should  he  coyned  betwixt  and  such' 
a  day  and  so  the  excesse  albeit  it  had  been  con 
trar  to  law  yet  being  befor  the  exoneratione  and 
the  same  being  conceaved  in  the  terms  afors'd' 
does  fully  secure  the  defenders  ther  being  noe 
necessity  to  express  the  quantitie  coyned  And 
as  to  what  is  alledged  that  the  exonerationes 
ware  procured  by  subreptione  and  obreptione 
Anss'red  obreptione  is  not  presumed  unles  the 
same  be  proven  and  subreptione  is  not  relevant 
otherwaves  not  only  this  exoneratione  but 
many  other  gifb  granted  be  the  king  might  be 
evacuat  and  wher  grants  from  the  king  bear 
these  words  *  ex  proprio  motu  ex  certa  scientia 
or  explentudine  iK>testatis'  or  wher  ther  is  *  reite  • 
ratio  actus'  as  ther  is  in  this  case  tlier  is  no 
ground  to  allead^  subreptione  or  obreptione 
and  ther  exonerations  are  not  of  ane  unuswall 
atile  but  run  in  the  ordinary  stile  of  exonera- 
tiones granted  formerly  to  the  officers ,  of  the 
Mint  atler  which  non  of  them  were  ever  called 
in  questione  And  albeit  the  warrand  be  relaited 
in  the  Narrative  yet  theralW  his  ma'tie  ratifies 
and  approves  aU  and  what;M)ever  quantities 
coyned  and  not  restricting  the  same  to  the 
quantities  coyned  by  vertue  of  the  warrands 
and  all  exonerationes  granted  to  persons  in  pub- 
lict trust  or  employment  most  relaite  to  the 
trust  and  imploy  ment  but  if  the  same  should 
be  restored  in  so  far  they  walked  legally  the 
exonera'one  would  be  of  noe  effect  seeing  the 
law  secures  them  in  soe  forr  as  they  have 
walked  legally  And  as  to  what  is  alleadged  that 
in  a  reiuissione  the  speciall  cryme  must  be 
exprest  Anss'rs  the  case  is  different  for  in  re- 
missioiies  persones  are  considered  only  as  crimi- 
nally but  exonerationes  are  of  a  mixi  nature 
and  considers  the  merits  of  the  persones  and 
ther  mistakes  or  erroures  they  are  obnoxious 
unto  and  non  are  more  obnoxious  then  the 
officers  of  the  Mint  Tertio  albeit  the  excess  in 
the  quantitie  of  tlie  copper  coyned  had  been 
a  crown  it  is  taken  off  by  the  act  of  indemnitie 
and  wheras  it  is  alledged  that  the  same  is 
only  as  to  publict  crymes  but  not  as  to  malver- 
sationes  by  persones  in  ther  offices  Auss'rs  the 
act  of  indemnitie  is  opnoned  which  is  a  na- 
tional! securetie  and  auglit  not  to  be  infrineed 
and  the  main  designc  therof  was  for  securing 
persones  in  publict  trust  for  besides  the  publict 
rebellione  the  act  enumerates  vy'  crymes  viz. 
out*  of  misrepresentini;  the  publict  judicatures 
and  ane  other  of  malversations  of  persones  in 

Jmblirt  trust  And  as  to  this  last  the  act  is  more 
ull  then  as  to  any  other  it  being  declani 
that  the  act  of  indemnity  should  be  alse  effec- 
tuall  as  if  e\ery  delin<^iicncie  or  misdemanour 
wer  rxprest  and  as  if  every  pcrsone  had  a 
speciall  remisHione  past  in  ther  favours  And 
the  act  is  most  comprehensive  in  ther  favours 
also  extending  the  same  to  all  who  had  advissed 
any  thing  contrary  to  the  laws  that  had  mal- 
Tsraed  in  any  publKt  statione  or  trust  snd  are 


^( ken t  fur  OffUial  MahtrMttom. 


A.  D.  iGSf . 


[808 


ut  orprfjunlrniHl  with  sucU  bmse  inony 
rMcli  U  i  it  far  cunv€?iiteiic<f  of  cbaugw 

•nil  f<»r  Li>  I  of  |i(Kir  [leuple  hut  not  to  be 

'  istfdc  use  €ii  u;>  ti>  tUe  ordinnry  change  of  troile 
«Qfl  cunitucrce!  the  extrinsick  vahie  beings  so  far 
l>etow  thi:*  true  value  of  ntuoey  and  albeit  the 
generallfi  of  Mini  have  right  to  the  halfe  of  the 
tNiiiper  by  a  ^ift  froia  his  ma^tie  And  that  the 
orooers  of  tbt?  Mint  have  ri^^ht  to  the  other  half 
ftv  n  pt^rc{!iisit4>l  tber  oflice  yet  that  can  only  be 
iJuders;tiH»(J  ui'  whwt  i^  alh*wed  lo  be  coyiied  by 
ibc  waraiidE  viz.  that  th?  six  tbouiiaDd  ston  as  to 
which  tliey  are  m>l  now  called  in  qiiestione 
But  that  cnxi  never  be  extended  as  to  what  was 
coyneil  Tuor«  then  was  contained  in  the  viar- 
rancU  lor  if  that  ware  sustained  then  the  gene- 
rails  ol*  the  Mint  needed  not  to  have  given  a 
wsrruid  for  co^uing  any  copper  as  aho  if 
they  had  hhertie  to  coyne  more  nar  was  con- 
tained in  the  h  arrand  Then  as  ih»\v  coyned 
tlierty  or  foi-tie  thousand  stone  more  so  by  the 
snrtie  rejiKone  they  mi^ht  have  coyneil  aue 
hundreth  ttiousand  ston  more  and  by  this  ac- 
count  tfier  should  have  been  nothincf  but  cop* 
per  mony  in  the  oouatr^y  which  was  abiiurd 
And  seeng^  his  ma'tie  was  ^ratiously  )de»^d  to 
allow  the  generatis  and  otfu'eni  of  the  Mint  to 
coyne  six  thousand  at  two  severall  journey es 
which  was  a  very  consiilerable  giiX  they  itare 
in  pcMiimo  dolo  so  far  to  abuse  his  nna*ties  sad- 
ness to  coyne  more  then  was  alloweil  by  the 
warrands  And  the  exooerationes  alledged 
upon  does  relaite  particullarly  to  thequantitie 
menttonef*  iu  the  warrands  als  weill  as  the  tynie 
Within  which  the  same  is  uilowed  to  be  coyned 
and  tiie  prorogutione  of  the  tyme  mentioned  in 
the  warrandH  was  nnl»e  fur  cleaiiuf;:  the  house 
of  the  remfinderi  of  the  copper  that  was  un» 
cuyned  whirh  h  ordiimr  to  be  grauied  in  such 
ca^e^  but  niH'd  not  to  idlow  any  £^reaiiT  (juan- 
tilif  to  t>p  cuyned  then  was  contuineil  in  the 
warrands  nn  ii  clear  fron*  the  severall  prorogn 
tii»uc«  and  exonerattoues  ^  And  albeit  ihe 
CTtoneraiione*  had  been  never  nubrep Hones  or 
ohrepdones  as  certainly  they  were  yet  seeng 
ihey  relaiie  only  to  the  warrands  they  can  be 
m»  iwriw exl«oded  and  for  what thedefender 
490yiied  more  then  was  allowed  by  the  warrands 
Itie  delenilcrs  cun  o^ver  be  secured  by  the  act 
of  iuflctnnity  for  the  reasiotiea  above  mentioned 
which  hi»  ina'tie*  adroc'st  and  sir  Patrick 
Home  advui'411  Ibr  his  hitfhucs  intrest  here  re- 


|»eat«feefig  it  iso  i 
iiatv  rdaits  oidy  to 
moti  tnlvreprtseiiliog  liu 
sHtionet  i^OfQllltttod  by 

the  n<^'t>f»'**'fi 


he  act  of  indern- 
.  in  the  <'Ountrty 


.♦;.>,,^ofth*,  j., 
it  as  to  wK; 
._  ninity  that  i  ..  .  „, 

t:r  *  nd  v*-»ud(cl'  «in  v«l 

f  only  to  ihcr  i  4>nM  In 

which  docs  no<  relaite  to  iht'  puLlict 
of    the    kingdonie  nor  to   privat 
ilarly  can  never  be  extend  it 
ujd   ioverfing  of  the  kin|^ 
^monty   which  tail    never    be   comprehended 
'   r  aay  a^  of  indirnaoity  Aud  alb«^  tht  act 


|»v 


tlivr  olhcr 
guveriuent 
fsrymes  n 
to  ilti>  IP 


of  indemnity  would  free  the  defenders  from 
the  puninhment  juBtly  due  by  tho  law  to  such 
gross  crymes  and  tnaWersationes  as  hes  beeti 
committed  by  them  preceediug  tl»e  act  of  in- 
demnity as  'truly  it  can  not  for  the  reasons 
fora'd  yet  th^t  can  never  liberal  thern  tirom  res- 
tit  utione  of  the  vat  we  and  profcita  which  be- 
h1n^'s  to  his  ma\ie  upon  the  account  of  right 
wiiliont  respect  to  thccrymeordi^ed  of  tnalver- 
sa'one  W  her  unto  it  was  t|uadrnplyed  liy  th« 
sM  earle  of  Lauderdate  his  pro'rs  auovenaified 
that  he  adhered  to  his  former  alled^nccs  and 
duply  and  wber  as  it  is  alleadged  that  the  kings 
interest  here  arisses  u|ton  the  nature  of  the 
Vights  and  not  upon  the  cryme  The  ^amein  of 
noe  weight  for  the  defenders  havcing  his  maM  ies 
command  tor  coyning  of  the  copper  and  the 
tyme  therof  what  ever  quantiiie  was  c€»yned 
the  profits  therof  belong  U*  the  defenders  them- 
sehes  the  officers  of  the  Mint  haveing  ever  been 
in  use  to  com  pi  for  tlie  same  to  the  exchequer 
And  *  reus  potest  alle^are  conlraria*  and  so  if 
the  king  haf  e  ane  interest  in  Ihe  benefit  of  iha 
copper  coyn  he  hes  granted  the  halfe  y'ofto 
the  carle  of  Lauderdale  and  the  rest  of  tlic  de- 
fenders have  right  to  the  other  halfe  as  perqui* 
siiofther  offices  and  if  the  excess  of  coynnig: 
was  a  cryme  then  it  being  extinct  by  the  act  of 
indemnity  anie  interest  arrysing  upon  a  crytne 
being  in  modum  pent  it  is  also  extinct  and  by 
the  act  of  indemnity  not  only  are  all  personr* 
indemnified  ^  quo  aid  veodictam  puhlicam^  but 
sIao  *  quo  nd  vendictam  privatum^  which  takes  ' 
off  all  damnadge  and  interest  And  when  ane 
cryme  is  abolished  by  ane  act  of  indemnity  no 
intrest  arrysing  therupoa  as  atie  tfiect  of  the 
cryme  can  suhsiat  otiierwayes  acts  of  indem* 
nity  would  prove  a  seed  of  plees  ami  tlier  can 
not  he  a  more  full  one  then  that  Im,  vi  r. 
siventie  nyn  And  farder  repeited  and  alletlged 
that  the  eartc  of  L;tuderda|je  hes  this  geuerall 
drjenci'  that  as  general!  of  the  Mint  he  if  not 
lyahle  and  crated  to  be  heard  therupon  now  or 
llijii  \\  niiiv  t»f  n>^*>rved  to  hitu  tu  l*e  heard 
v\  of  the  cause   Wbtlkol* 

hi  II  made  and  propoitedfor 

the  s'd  dele'rs  renly  dwly  triply  and  quadruplj 
a'mi'Utioned  made  iherto  witli  the  fors*d  sum- 
mund^  Heing  all  at  tenth  read  tieard  seen  and 
consideretl  he  tlie  saids  lonU  and  they  iherwith 
being  weill  and  ry|dy  advvsed  The  sMs  lords 
repelled  the  fors^d  \ir&v  allerfgeauce  Scarinjr  that 
the  profit  of  the  copper  coyne  i«  a  perquisite  of 
lilt!  deflendeii»  ofBi*e  And  als  repelledthe  tbrs'd 
v^alleadgant  i'  '  '  t^  uiera'ones 
rid  thatth<  Is  ua  far* 

■ti  lathe  iin...,M*i../  ._i,;i._..^._.i  ^^  the  war- 
md  the  malver^atione  in  relatione  to  the 
;j, -,  .„ue  And  lykcwayi^  repelled  the  third  aU 
Icadgance  founded  ooe  Ihi*  act  of  indemnity  and 
Hand  that  the  same  can  not  lecure  the  cTefen* 
ders  from  being  lyable  in  reslitutione  of  the 
value  of  the  eop(»er  coyne  more  nor  was  con* 
taincd  in  the  warrands  AntI  aiimitted  the  s'd  ttrtl 
article  of  the  lylicll  ancnt  the  copper  coyned  to 
the  s'd  nerst*%^4?rs  prtdMtJone  a&d  for  pfoveint^ 
therof  the  s*ihi  lords  ftitigQtd  to  the  s'd  m 


34  CHARLES  II.    Proceedings  against  the  Earl  of  Lauderdak     [SOf 

holds  lliat  since  the  copj)er  was  im[iortGd  fiy  tlie 
officers  of  the  Mhit  and  the  king  hy  the  sot  of 
indemnity  havein^  pardoned  the  cryine  albcil 
in  respect  of  tlie  itnpressione  tlie  iiiony  belon^r 
to  the  king  Yet  it  must  be  with  deductione  of 
the  value  of  the  copper  and  workmanship  for^ 
the  cry  me  beiop  pardoned  the  law  makes  noe 
distinctione  whither  the  acquisitione  was  bona 
or  maktfide  cspeciallie  wher  the  species  is  re- 
diiceable  to  the  first  mass  and  the  defe'rs  to  hare 
allowance  of  expenss  of  the  workmanship  be- 
cause the  work  was  profitable  to  the  king 
sceng  the  extrinsick  value  of  the  ooppfr 
coyned  is  near  double  the  extrinsick  Talae 


fl07] 

Geor^  M'Kenzie  his  ma' ties  advocat  and  sir 
Patrick  Home  advocat  to  have  letters  direct  at 
Jiis  instance  for  sumonding  of  such  witnesses 
and  probatione  and  als  to  produce  such  writts 
rights  reasones  and  documents  as  he  had  or 
would  use  for  proveing  therof  against  the  sM 
day  with  certifica'one  c.  Tlierafter  it  was  far- 
der  alleadged  by  the  s'd  defe'rs  pro^rs  above 
damed  that  the  defender  can Aot  oe  lyable  fot* 
the  profits  of  the  copper  coyn  hes  been  possest 
by  the  officers  of  tlie  Mint  as  a  perf|insite  of 
ther  office  wh'ich  iminemoriall  possessione  niost 
secure  ths  defenders  these  profeits  being  *■  bona 
'  fide  precepti  fructus  et  consumpti'  and  ther 
was  never  any  count  made  of  the  copper  coyne 
9o  Esto  the  profits  of  the  copper  coyn  wliich 
exceed  the  warrands  should  belong  to*  the  king 
yet  the  defenders  can  not  lose  the  copper  which 
was  coyned  nor  the  workmanship  therof  ther 
l)eing  onlie  ane  access  as  to  the  quantity  in  the 
ordinary  administra'one  of  aiie  office  ami  if 
they  should  not  have  allowance  of  the  copper 
and  workmanship  it  would  be  a  confiscalione 
arrysing  upon  a  delinnucncie  against  which 
the*^  defenders  issccunxl  by  the  act  of  indem- 
nity To  which  it  was  rcplycd  bethesM  .sir 
George  M'Kcnzie  his  ma'ties  advocat  and  sir 
Patrick  Home  advocat  fur  his  liighncs  interest 
that  ther  is  no  law  or  custoine  allowing  copper 
coyne  to  the  officers  of  the  Mint  as  perquisit 
due  to  ther  office  ffarder  then  what  is  alloweil 
by  warrand  to  be  coyned  and  the  proffeits 
arrysiog  therby  cannot  be  s'd  to  be  *  fructus 
'  bona  tide  percepti  ct  consumpti'  for  sceng 
they  knew  that  ther  was  only  six  thousand 
stone  allowed  to  be  coyned  by  tlie  war«ands 
They  ware  iu  petsimo  dolo  to  coyne  more  then 
was  allowed  and  the  defenders  cannot  have  al- 
lowance for  the  value  of  the  copper  or  expenss 
of  the  workmanship  that  was  coyned  more  then 
was  contained  in  the  warrands  For  what  was 
coyned  more  being  unwarrantablie  coyned 
it  most  belong  to  the  king  '•  quia  versabaulur 
'  in  re  licita'  and  tliey  wex  \n  pcssimajide  being 
the  kings  servants  and  intrusted  by  him  to  ap- 
ply the  kings  jrons  and  impressions  to  anie 
more  copper  then  was  allowed  by  the  warrands 
And  the  act  of  indemnity  as  it  does  not  secure 
the  dnfcndcrs  from  the  cryme  for  the  reastmes 
above  mentionat  farr  less  from  the  restitutioiie 
of  the  valwe  of  the  copper  that  was  coyned 
more  then  was  allowetl  by  the  warrands  and 
that  without  deduc'one  of  any  thing  upon  the 
£ccnunt  of  the  price  of  the  copper  or  cxfiensses 
of  the  workmanship  which  they  aught  justly  to 
louse  l>cing  in  re  licita  And  oppones  the  former 
interloqtiitor  wherin  this  is  allready  decided 
Whcriiiilo  it  was  duplj'ed  by  the  s'd  defenders 
pr'ors  above  named  that  the  forsM  alledgeance 
stands  relevant  notwithstanding  of  theanss'r  for 
iitiCt'iJicatinne  (sic  orig.)  w  her  I  he  species  is  re- 
duceable  to  the  former  matter  The  right  of  the 
species  l)c1ongs  to  him  who  had  right  U»  tlip  mat- 
mnd  albeit  in  this  caice  copjier  money  he  re- 
ducable  to  its  first  mass  yet  in  respect  of  the 
publict  interest  it  must  rcmaine  alse  currant 
■ipn»w  but  th«  commOo  ground  of  law  still 


coy 

thereof  Ly  keas  the  defenders  imploded  many 
other  peopfe  in  tlie  work  about  fourtie  or  ther- 
by besyds  the  servants  in  the  Mintliouse  It 
was  triplyed  be  his  ma'ties  advocat  and  sir 
Patrick  Home  advocats  for  his  highness  inte-' 
rest  that  the  king  does  not  pretend  right  to  the 
copi>er  that  was  coyned  more  than  was  allow-i' 
ed  by  the  warrands  by  vertue  of  the  specifica- 
tioue  but  by  vertoe  of  accesslone  That  the 
copper  which  is  the  matter  should  follow  Ihe 
king's  stampt  and  impressione  as  being  the 
more  precious  and  is  that  which  makes  the 
coyne  to  pass  at  such  ane  raite  worth  and 
value  As  in  the  case  of  a  pictur  dmwn  upon 
auf^  wy'  mans  cloath  ana  table  the  cloath 
and  table  will  alwayes  follow  the  pictur  as  the 
more  precious  *  Libro  secundo  de  institotiooe 
^  de  acoiiirenda  renim  domini,'  pa^therty 
four  '  Si  quis  in  aliena  tabula  pinxent'  Ana 
the  defenders  can  not  have  allowance  for  the 
mass  of  the  copper  seeng  they  ware  in  <  pessima 
*  fide '  to  coyn  more  then  was  allowcu  by  the 
warrands  aud  what  ever  right  hfVe  been  pre- 
tended if  the  copper  had  be^n  brought  if- ny  • 
stranger  and  tliat  the  officers  of  the  Miot 
had  adhibit  the  kings  &tanipt  or  impressione  to 
it  without  the  owners  knowledge  that  in  that 
raice  the  owners  might  have  craved  allowonoe 
from  the  mass  of  the  copper  ]>ut  that  can 
never  be  pretended  in  this  case  wher  the  cop- 
per was  broght  in  and  coyned  by  the  oflBoeni 
of  the  Mint  themselves  And  seeng  that  they 
knew  ther  was  noe  more  alloweil  to  be  coyneil 
but  the  six  thousand  stone  so  that  they  wil- 
lingly and  witingly  have  coyned  more  then 
was  contained  in  the  warrands  allowed  by  the 
law  They  ought  to  have  noe  allowance  for 
workmanship  upon  the  same  ground  as  abo 
they  being  the  kings  servants  aud  haveingml- 
laries  they  ought  to  have  noe  allowance  for 
workmanship  And  if  it  ware  otherwayes  smi- 
tained  it  would  be  a  way  to  incurradge  the 
officers  of  the  Mint  in  tyme  comeing  to  com- 
mitt  the  greatest  abuiscs  imaginable  for  they 
would  alwayes  coyn  more  then  w  as  altowed 
by  warrand  if  they  know  they  ware  to  hare 
ailowanri;  for  the  value  of  what  was  coyned* 
more  then  was  allowed  and  thor  dwes  of  coyn- 
adge  albeit  therader  should  be  discovered  so 
they  should  lose  nothing  but  I  he  profits  tb|rtr 
they  designe  to  get  to  tljemselvc»s  And  ttatt 
war  to  incurradge  the  abuises  and  malrerM- 
tioues  io  relatione  to  tlie  Mint  instead  of  mpU 


tmi  ot furs,  for  Official  M 

prc^sinf;  anil   punl«i1iinu;  0»«  same  wtul  sveug' 

*  nemo  (lehet  lucrari  ex  suo  dolo  *  evisu  iu  cvisw 

htiwixt  privut  punier  mu't'b  tc^s  tri  mnttters  re- 

Iaiikil;  to  ilie  Mint    Whfniiitoit  wus  quarlrii- 

iifycU  lie  tli«  <lf'fetHlcr»  iiro'rs  u'riamt^^l  (itilli»*r- 

^^Ij-  la  their   furmer  aflcfigcance  and  liupl^) 

^hl   tftey  tire  not  here  in  llie  cuse  of  acecs* 

^Sone      And  that  instance  of  ane    picture  to 

Dvhich  the  mauer  did  ndc  was  a  sii»{^«-ultur  ili 

<0tfione  ii)<:im»ef|iientiiill  to  other  Inwh  and  the 

tDurid  of  it  was  the  excetlencie  of  the  pttiurr 
d  It  doei4  nnt  (jiio  ttd  that  wilh  I  he  present 
cnse  To  which  it  was  (pTailriijilyed  Uy  hiis 
Ttm'ties  advocut  and  sir  PatiicU  iloine  fur  his 
liig;tmes«  ititrestt  That  this  ivns  rk'iire  in  the 
Cftse  of  accesHiooe  which  hy  the  U\w  was  <inp 
<it  tlie  Wftye«  of  aff|iiifm^  tlie  rijjfhl  and  doini- 
niun  of  a  thioir  and  ther  wti%  uoe  sin^uhirety  in 
the  c»se  instaiiceil  It  being  a  t>rrtaine  pnnci' 
pie  in  bw  iind  the  opptiitoti  of  all  the  tawern 
lh      i  i  rhatsnl>je«H     VVIiilk  aU 

1«mI  I  and   pioponed  lor  ihc 

Sttiiis.  lir  jt  ii«i'  1^  rr|M\  IS  duplyes  tripJyos  <jitHd- 
ruplyes  urul  fpniititjilyrsalHt^eni^nlioncil  ii»adc 
therto  iieint^  all  at  Itnth  heard  rtil  setn  artd 
roniiidered  l>e  tfie  saidii  lord^i  and  they  hcincf 
therwiih  weill  and  ryply  advysed  Tlic  splits 
lords  sustained  thf  tbrMiid  alhMi«^eance  a?)  to  ilie 
dedur.tiant!  of  the  pryce  ot  the  copper  hnj^lit 

«the  defenders  (more  nor  the  six  tho(i!>iantl 
lie  alh)ii«d)  pre«*f*edintj  the  act  of  indemnity 
Tl*ey  afffAi^eH  conrle^ceiidino  np4in  ami  prove- 
in(f  the  i)iiantitie4'of  the  tinid  copper  and  the 
pryce  they  boiig^ht  the  same  at  betwixt  and  a 
eertaine  day  now  by  gnuo  ^V  hieh  the  snids  lords 
ij^ned  to  the  saids  defenders  and  thcr  pro'rs 

j>vc'  named  tor  that  effect  with  certitiea'ne  c. 

eri-eiyt;  to  his  majpstic^i  ad  vocal  to  be  beard 
a^in«i  ihe  proljatione  but  refu'awl  to  allow 
the  delenders  the  pryce  of  any  eopfier  coyncd 
l>y  them  fii  nee  tlvc  act  of  indenuuiy  nnilal^e 
tefuiscd  to  allow  any  expenss  of  woiktuanghip 
tinne  by  the  officers  of  the  Mint  or  scnanU 
ivnder  tliem  in  the  Mintliotiive  But  deelaire^l 
if  any  thinj^  Ije  dwe  and  resting  to  cTtrinsjck 
workemeii  upon  that  accomit  the  V  uill  a  I  low 
tli«  wime  out  of  the  fi Hit  end  of  tfie  !»anmi^  to 
be  rtjoovered  fffmi  the  defenders  Thci'aiier 
ilie  said  J»ir  r  >  Ken/.rc  his  ma^tleH  ad- 

Tocmt  and  si  Home  advocat  for  hia 

in;>'  '    V  insiitleil  upon  the 

«•  I  ad    lybell  viz.  for 

pajfi  iri'^tii  ujr  ior*<;n*i  N^mnir  of  t^refve  !4hillin|Tf 
Kr.^is  tor  each  imce  of  hulhonL'  p*«y<^l  m  be  the 
iiP,*^,  ^..^^c  ^'^ily  the  years  ahnxf  nvc-iitionat 
t^  lite  Koume  of  three  hnndreil  and 

f?l,  tlinii^nnil       TwuiitiJ       S.4.t>      mOUy 

Al  ud  carle 

of  *    ■  I      ,                       .    n^iTirsl 

that  tht  the  i\iini  I 

ble  i'm  .<'  rinr!  hi 

and  tb'  .*  tor  the  btilhone 

4mt  tb^  ih*"»ciof  parlin- 

^1/'  rrr^rvof  the  Mini 

^■i^ft  mri.t*  I  M   Kione  from  the 

^^^■itMmd  ^i  \>i     Mid  holdi 


rompt  to  tlie  exchequer  for  the  stine  And  ibe 
kinflf  hes  taken  particuUar  securely  fnnn  lb*» 
rnasitwr  of  the  .^Imt  as  apnear>i  by  a  btmd  pti>- 
dticed  granted  be  sir  John  Falconer  and  ane 
oilier  be  bin  Halber  wherin  t he v  linviv found 
cationuc  And  not  only  did  sjir*fohn  Falconer 
as  mnstcr  of  the  i^lint  make  compt  bnmeHy  to 

er    Wherunlq 

zie  \uK  ma*ties  ailfncal  and  sir  Patrick  llomiii 
jntvot:i»  i'"f  liiH  bit^iies  inieii'Mt  that  by  Iho 
act  (.1  lit  in  the  year  Im.  vie.   sixtie 

nynr  4  the  Imllioue     U  being  lb erhy 

left  in  the  optione  of  the  marelinnts  importers 
of  the  g-oodt*  ihenn  metil toned  either  to  pay 
bidlionc  in  specie  or  to  puv  money  furlhesaui«. 
at  the  raite  of  twelve  stnllin^  per  ounce  And 
the  mony  «o  payed  i^  appointed  to  be  delivered 
lu  theg^cneratlsHnd  master  of  the  Mint  by  tb© 
taek«inien  and  coll cvc tors  Ami  the  gcnenith 
and  master  arc  oblciijed  to  import  the  ^iocU  "»r 
btillion  Ibeniselves  and  to  royn  the  same  so 
llirit  it  IS  eltar  by  that  act  that  the  generaUs  ^h 
wrill  as  tlie  master  is  eomptablc  for  the  tvveho 
shillini;'  payed  in  for  every  ounce  of  bullions 
and  not  onfy  is  ibi^  MurraU  lyable  in  this  pur- 
ticullar  ca^e  ai»  i  tfiincr^  relaitinsf  to 

t  her  own  office  ;  ils,  but  are  lyable  *» 

soiidum  for  all  the  abuses  and  m:tlver!tiation('^ 
cnmniitted  by  any  other  officers  of  the  Mmt 
And  that  for  th^e  reawnis  Vrlmv  They  or* 
tyable  tirtutc  officii  by  vcrtue  of  the  office  ai 
gpcnemUs  who  i8  bis  ma*tie!i  suprctim  ofticcrsi 
in  the  Mint  especially  scen^'  that  by  thcr  i^'ifc 
they  have  jiower  to  comptndl  and  redarg;weaU 
other  otficers  uf  the  Mint  And  with  fiue  Am]d« 
po^vtr  to  bold  courts  and  to  punish  cl*»litupiLni» 
>vhicb  clearly  evinces  that  not  only  the  gene- 
ndh  lies  tiic  snpreiim  power  and  superintend- 
ence over  all  the  rest  ot  the  otficer*  ot  the  Mint 
hut  also  ought  to  have  a  particultar  rare  atn| 
see  r\ery^  tnan  jvetforme  his  otlice  faitldully 
and  in  case  they  doe  not  to  punish  them  ae.- 
cordiui^y  and  to  represent  to  his  ma' lie  if 
any  of  them  malvenie  in  tlier  office  that  they 
may  be  receaved  (sic.)  and  others  more  faith- 
fulfaud  diUi^nnit  put  in  ther  place  And  yet 
notwithstanding  the  g'eneralls  did  not  only  jn'**ss- 
ly  maUertie  in  ilnui^^  Maitinjg;:  to  tlier  own  office 
but  \^  I  uiesan<l  suniii  i      '         t 

insrr  ("crsof  theMiii 

their  fttuH-  niminuiy  ami   iu   Uiairy   ^^iiirni- 
lars  ware  shairer*;  wtUi  them  in  thcr  urtjtigt 
prutit^J.     And  first  to  the  r'-'       ^'    '* 
his  nia'tte  allowed  only  s 
lie  coyned  j'»  **vn  rfn..u  i  .    : 

was  neir  I    «o 

ih;ii  y' was  yned 

•  nt  a  wamind  contrar  to  v  dis- 

.^'-•ing  the  same*  under  lh»+-  :iji*li- 

nteniA  by  which  the  coUJdr«-y  wait  ahiiii»ed 
with  co|*{>e.r  many  Thcr  being  mlmost  ntm 
Tminy  left  in  the  countrey  but  t^opjier  inooy 
which  waK  ane  inlinit  pn-jmliceto  the  cuotrey 
9nd  mine  of  tj-ade  For  the  tyme  <' 
t»hoold  havtt  tp«!Ut  iu  coyatog  of  b 
I* 


■1 


«1I] 


34  Ch ARLES  It.    Pmeeimgi  $gam9t  the  Earl  0/  LauitrMe    [912 


bis  mastics  lue  aDd  the  uie  of  ihe  narcbants 
was  for  many  years  spent  only  in  coyning  of 
copper  mouy  for  tber  own  advantadge  off 
whiirli  the  ^eneralls  did  take  the  greatest  part 
of  the  benefit  to  themselves  Nixt  wheras  his 
lua'tie  appointed  tiveiKic  thousand  marks  aa  a 
stock  for  buving  oi'  bullioBe  which  might  liave 
been  coyncd  and  changed  twenty  tymes  in  a 
year  and  which  the  generalb  ahoukl  have  seen 
done  yet  ther  was  noe  bullion  bought  with 
that  stock  of  mony  Albeit  the  genmlls  and 
master  did  most  uniustJy  exact  the  a'rcot  of 
thetwentiethonsantf  manu  from  his  ma'tie  as 
if  the  stock  had  been  imployed  yearly  for  buy- 
ing of  bullion  As  also  albeit  by  the  act  of 
pariiament  the  twelve  shilling  payed  in  by  the 
mar^liants  in  place  of  every  ounce  of  buflione 
should  have  been  emplotred  for  buying  of  bul- 
lion Yet  notwithstanding  the  generall  and 
master  did  not  imploy  it  for  buying  of  bullion 
but  applyed  it  to  ther  t>wn  pry val  use  And 
albeit  by  the  laws  of  tliia  kmgdom  the  mony  is 
appointed  to  be  of  equaU  weight  and  finuess 
with  the  mony  of  England  yet  notwithstand- ' 
luf;  it  hade  been  minti^  forrWow  the  finness 
of  the  standart  And  albeit  the  officers  of  the 
BUnt  ware  only  allowed  to  work  upon  the  re- 
medies in  case  of  casnalety  Yet  they  have 
alwa^es  industriously  wrought  upon  the  re- 
medies so  that  the  Scots  mony  is  less  then 
the  intended  standart  plat  above  two  graines  As 
also  albeit  (sic.)  be  contrary  to  law  and  the  na- 
ture of  all  MinU  that  any  money  ahoukl  be 
coyned  witliout  esser  Yet  notwithstanding 
the  greatest  part  of  the  money  ooyned  in  this 
kingdome  undf  r  the  pretence  of  diiselllicads 
awips  and  scraps  hes  been  ooyned  without  any 
pott  esse^  which  is  the  occasion  that  tber  is  so 
much  baise  mony  in  thekingdome  As  also  albeit 
his  ma'tie  for  securety  of  the  weight  of  the  mony 
coyncl  iu  Uiis  kingdomc  had  sent  down  a  pyle 
of  weights  from  EneUnd  Yet  notwitbsUndmg 
the  officers  of  the  ilfiiitmade  use  of  the  deun  of 
Guilds  weights  for  recoaving  in  of  bullione 
from  the  marcliants  which  is  four  in  the  hun- 
dred heavier  then  the  Scots  pyle  of  wdg^ts  by 
which  they  troned  the  peaces  so  that  they 
made  use  of  different  and  false  weights  in  re- 
Ceavinc^io  with  ane  weight  and  eiveing  out  with 
ane  other  And  the  lord  l^Iaitland  ane  of  the 
generalls  albeit  he  receavcfl  the  EngUah  pyle 
at  London  by  warrand  from  the  king  Yet  he 
would  never  suffor  it  to  be  made  use  of  in  the 
Mint  but  one  the  contrary  when  the  Soots 
pyle  was  reduced  to  the  true  English  pyle  of 
weight  he  caused  transforme  them  and  bring 
tlieni  up  to  the  dean  of  Guilds  weights  and 
continwed  in  makeiug  use  of  these  weights  be- 
fore the  year  liii.  vi  c.  iMghtie  two  that  the 
officers  of  the  Mint  came  to  be  challenged  for 
ther  nialveraatione  As  also  albeit  the  pnifit  of 
the  exaltatione  mony  did  belong  to  the  king 
yet  the  officers  of  the  Mint  dul  Uke  it  lo  them- 
selves As  also  albeit  ther  was  a  conaiderable 
quantitie  of  bullion  yearly  lying  by  the  offi- 
Ms  of  the  Wnt  uncoyoed  the  profeit  therof 
-^"1-'  iiare  bekM|g«|  to  the  kiog  yet  not- 


withstandingr  they  applyed  it  to  tlictowD  privat 
use  And  albeit  by  toe  law  the  melling  down 
of  the  current  mony  of  the  kimcdouie  is  dii- 
charged  under  very  aevefe  peoattiea  yet  not-*: 
withstanding  tlie  officers  of  the  Blint  did  mete 
down  many  thousand  of  rezand  legdollen  and 
doucatdouns  to  the  {j^reat  prejudice  of  the  king- 
dome  and  mine  of  trade  so  that  it  is  almost  n 
wonder  ther  should  be  any  mony  in  the  king-' 
dome    AU  which  abuisea  and  malverantianci 


the  generalls  of  the  Mint  by  vertne  of  tber  of- 
ficeis  should  have  looked  to  and  rectified  and 
punished  the  transgreason  which  tbey  were  an 
far  from  doemg  that  almost  in  all  the  fim'd 
particullars  tliey  ware  sharers  with  the  afieen 
oftlieMintthemselveB  in  the  uiyuai  gain  end 
profite  that  did  aryae  by  these  ahniaea  and  oonl- 
versationes  And  to  all  these  groMabuiaae  and 
malversationee  the  carle  of  Lauderdale  aopec* 
aded  the  unjust  acting  of  new  payment  et  the 
same  years  salhurie  and  brvbttv  in  taking  n 
hundred  pound  to  get  sir  John  Iwoncr'a  nigml 
and  exorbitant  accompts  from  theexchec|tter  ha 
being  then  ane  officer  of  state  his  ma'tiea  the- 
saurer  deput  and  ane  of  the  commias'n  of  the 
thesaurie  And  oppression  in  extorting  bandi 
from  the  other  officers  of  the  Mint  for  camale* 
tyes  that  did  no  wayes  belonp^  unto  him  hot  It 
his  ma'tie  and  did  so  far  abuise  hia  ma'tiea  an« 
thoretv  for  his  unjust  ends  as  that  he  Ifaieal* 
ned  them  that  if  thev  woukl  not  yeild  to  hii 
desyre  that  he  would  persew  them  hofor  hit 
ma'ties  privy  connsill  of  ilesigne  to  palUat  and 
cover  his  extortione  under  the  pretence  of  ahad* 
dow  of  law  And  therfor  the  generalls  not  onl^ 
for  the  acts  and  deeds  of  nMlvemtione  dene 
by  themselves  in  rdatione  to  ther  onn  nffica 
but  also  for  neglect  to  see  the  other  offiooM  aff 
the  Mbt  doe  ther  office  as  is  dear  from  the 
common  Law  Digest  tit  de  administratione  ler. 
ad  civitat.  pertinent,  lege  nynth  par.  ei^ 
item  rescripserunt  curatoreni  etiam  noauaa 
collegss  tcnere  si  intervenire  et  prohibere  dwa 
potuit  2 .  They  wer  oblidged  ex  colitractu  vis.  eK 
mandalo  which  in  law  is  defined  t6  be  oon* 
tractiis  in  quo  ipsius  bnn&  fide  negotium  aliqoid 
alteri  serendum  comittit  alter  vero  gratuito  ant* 
cript' butif  the  mandator  have  allowance  eir 
sallane  for  his  paines  then  tenetur  ad  ezactiai* 
mam  dilligentiam  et  dc  levisima  culpn  aa  it 
clear  lege  therteenth  Cod.  mandati  libra  < 
tit.  thretic  fyf^h  a  procuratore  dolum  et 
culpam  non  etiam  improvisum  casum 
tandum  esse  juris  authoritate  manifeste  denlniw 
atur  And  Cicero  in  his  oratione  pro  MimAv 
in  privatis  rebus  in  quibus  rem  mandalam  aon. 
mmlo  malitiosius  gesserit  sui  queatus  ant  i 
modi  causa  verum  etiam  uegligentius 
sum  mum  dedecus  quid  enim  recipis  ma 
si  aut  ad  commoduni  conversnrus  ant  1 
urus  es  cur  mihi  te  offers  ac  meis  coma 
officio  simulate  -offers  et  obstas  In 
charges  sayes  he  if  he  that  hes  undertakan-A ' 
oommission  or  mandat  does  not  only  malitiniMly:  ^ 
cary  himselffor  executs  the  commission  far  hi^  * 
own  gaine  and  profeit,  but  also  does  il  nqgin  ' 
.gcctlyitjjsagreatdisi^^cetohim  ForwhgF'didI-' 


913} 


9ni  Gihert^for  Official  Malversatiom* 


A.  D.  l6S2* 


[814 


be  receive  a  mandat  if  be  wm  only  to  make 
Uf«  of  it  lo  bb  own  piivRt  g^aine  ami  tie|9r}ect  or 
why  ili<l  be  offer  liiriiM«lfe  or  obttriict  bis  c«)ii* 
fUtuejiU  {^aineor  (iroIHe  by  [itakiii^  »  shew  to 
4oaliilft  service  when  in  the  momc-iyme  lie  was 
4iieiii|(r  alt  fur  4us  own  pmtite  and  game  wbii'h 
*J«e«  vary  lively  represent  ifits  case  The  ge* 
nertik  un«ier  the  (iretence  of  serveing  the  kin^ 
and  iierlormiiijif  ilier  officer  as  they  ware  ob- 
leiilf^ml  by  ther  coraroissioae  either  eon  verted 
Ihe  promts  arysing-  by  the  Mint  to  ther  uwu  use 
w  oilierwayeji  iiegle<:ted  lo  ste  the  other  ofBcers 
at'  tbe  Mint  doe  ther  ductie  in  ther  rei£*ive 
fiffioea  acconjin^  to  the  power  and  trust  com- 
milted  to  the  g'enerallji  hy  ther  giW  As  also 
Ibey  are  lyable  ex  eontracuj  locaiionis  et  con- 
duciioni«  wbidi  in  law  is  tteiioed  to  be  con- 
Iracttis  botne^fidei  <]iio  prt^tatur  iLfiis  rni  pt 
opera  ceita  merceiti;  catiMiitita  Sit  ihat  the 
cofiduGtur  who  ^'lea  allowance  and  sallarie  lor 
his  paiDC  and  work  is  lynhle  ad  eitacUssiinani 
diligeQtJaiii  as  is  ck-ar  t'roni  lege  vigresimo 
octavo  Cod.  de  looat.  et  conduct.  I ibro  i|uiirto 
tilulo  S€JtBifes»tmo  quinio  in  jmlicio  turn  bicati 
i|uam  conituctj  ilolum  et  cnstodiam  non  eimm 
Ciaum  cui  resisti  non  porcKt  vernre  funstnt  so 
that  both  in  tlie  casie  of  a  mandator  or  conductor 
ojieratonim  They  are  lyabJe  for  eicact  difli- 
genee  in  so  farr  as  the  law  oidy  excepts  casits 
S^nuitos.  Tertio  as  they  are  lyoble  ex  otticio 
aJid  ex  contractu  so  lykewayes  tliey  are  lynbte 
en  quaiiii  cenlnu'tu  as  nejfotiorum  uestoiWtbty 
Wing'iDtrusttd  by  bis  mu'lip  m  illi  the*  manadt^- 
mem  of  the  Mint  who  by  llu"  bivt-  arp  i\iibfe  lo 
the  exacte«t  ddli^:citce  lii.^tiiut.  bbr<»  tcrtif>  par. 
priino  tituh»  vij^euifno  ocUio  quo  canu  ail  ex- 
actiajniain  qnivque  dilitrentiatn  cffm|iettaui'  red  > 
deitf  ralionem  htrcsu^hcittaloiiMlifitfenHuni  ;id- 
hibcre  qiualciu  suis  rebu*»  adhibere  solet  s>l  ruodo 
alMfdiligenter  (eo)  co^nmodiu^  ndniinistruturns 
etaci  oegotin  Which  is  clear  in  this  case  seen^ 
tbe  kiD^  woyld  have  gotten  fyve  thousand  in 
iicotland  who  would  have  discharged  ihb*  office 
more  dilli;^eiiliy  und  faithfully  then  they  hat^ 
dooe  As  also  it  ia  clear  fn»ui  these  titles'  in  the 
lair  de  adioue  exevcitoria  et  institoriu  tbut 
lb#  eicercitor  Navts  the  ina.%ter  of  the  ship  or  the 
Miter  who  is  propo!»ed  to  he  the  nian{)d«^erand 
overseen^  of  any  particuHar  ertair  viho  are  not 
only  lyMG  Utr  tlie  exat'lesl  diliigence  hut  are 
)yaide  in  solidurn  lege  prim*  id  est  dc  exem^ilor* 
action'  par'  tiuah  librudeciino  quarto  titulo  pnmo 
fti  plurtfs  uavetn  exeroient  cum  quoliln  t  eoriun 
iaauhdmu  agi  poteat.  Quarto  ;  they  are  lyabte 
ex  deheto  vel  ex  miaai  delicto  vel  ex  lege  Aquilia 
irel  in  factum  lor  makeing  up  the  toes  and 
pir^udice  tliat  any  part  b«?s  sustaiiRnl  through 
ftoc  otbeis  de^MlIt  as  also  wher  thtr  are  many 
iMitiea  eOQCcriiod  therein  they  are  liabkiu  so'- 
fiduin  aa  is  deare  titulo  eodem  lege  quinqna- 
fresiniB  prima  par.  in  ttne  cum  plures  trabem 
aJicnam  fiiraiuu  isuaa  sustiilerunt  quain  singu- 
U  1mm  wm  pommA.  imtii  actio ne  o nines  teneii 
4{daiiitis  Kubtili  ratiotui  dici  possit 
cofum  tetter i — uemuoein  vcro  tra- 
•liasi  As  also  thU  is  larder  cleared  in 
tof  ihiilwbcr  many  peraoaci  are  oou- 


ctirring  to  the  oomtoftting  of  a  Ihift  they  aro 
lyable  in    soliditm    lege  sexta  digest   arbor. 
itirtum  crrsaruro  hi  plures  eandeiu  ac  arborein 
surtum  cecideriiit  uuum  singidos  in  scdiduni 
agetwr  as  also  they  are  I y Able  ex  crimine  pe* 
eulatns  for  abstractKig  oi  the    pwblict  numy 
which  ware  the  profits  of  the  Mud  hdongiog 
t*i  iht*  king  and  converting  the  wune  to  thef 
own  privat  use   As  also  tbey  are  ly able  ex  cri- 
mine de  residiis  by  wtteriog  the  satne  a^  pubtici 
money  and  not  im ploying^  the  satne  as  they 
ou^ht  to  have  done  Anil  this  is  clear  tykwayea 
ill  Uie  case  of  spuUies  and  wnongous  intromis- 
sion t^^  wher  the  parties  are  not  only  lyable  for 
rv!»titutionc  of  the  thing  taken  away  but  alsQ 
an?  all  h  able  in  soHdum    To  which  il  was  du-» 
plyed  by  the  earle  of  Laoderdails  pro*rs  above 
naineil  that  the  kingbaTcingsecureil  hituselTe 
h\  lakeiiig  cation  from  the  master  of  the  5lint 
ific  genenill  at  most  can  be   but  lyable  onl^y 
subHidarJe  al^cr  the  master  is  discnst  and  lliis 
of  Ihc  bullion  is  coimtwl   for  the  Exclietjuei* 
And  the   counts  lying  bcfor  them  and  wbal 
ever  the  birds  may  doe  to  clear  things  <br  the 
ftitur  it  war  hard  to  make  the  gmerall  lyable 
for  bygaios    To  which  it  was  triplyed  by  sir 
Otforge  i*l*kenzie  his  ma' ties   ad  vocal  and  sir 
Patrick  Home  ailvocat  lor  his  highnris  intc*rtsl 
that  albeit  the  Exchequer  hcs  taken  cauiiono 
irom  the  master  of  the  bullion  for  the  kingst 
ItLriltT  securetie     Yet  that  does  not  libemt  ihe 
general  Is   who   are   lykewuycs  Ivable    to  the 
king  by  the  law  and  what'biilliou  thi^y  hav« 
eo  anted  i\^r  to  the  Exchequer  shall  be  de<luccd 
Which  seci^nd  article  of  the  lybell  ubove  writ- 
ten   repeikd  and  insisted  upon  by  liisma'tii-a 
advocai    alledtfeances  proponetl   for    the    s^<f  * 
earle  of  Lauderdale  against  the  ^ainen  repl| 
duply  and  triply   above  written  made  iherf ' 
being  all  at  leiitfi  read  heard  seen  and  cona 
dered  be  the  s'ds  lords  and  they  l>eing  tliei^ 
with  Weill  and  ryply  advised  they  repelled  tli 
fors'd  alledgcance  prOponed  for  the  earle  of  Lau« 
dti-dale  gcnerall  of  the  Mint  in  respect  of  tb 
reply   and  triidy  made  therto  and  fiand  tha 
Ihe'generoll  ot  the  Mint  is  com|)tjtbl    lo    iL' 
king  for  the  bullion  and  the  proteiUi  arrysin 
iberfrae   reserring  to  the  gene  rail   his  relie 
against  the  master  and  other   otiicens  of  thr 
Mint   as  accords  of   the  law    And  arliuiti 
the    fora'd    second    article  of  the    lybdl 
the  perse wers    probalione   and    for    provein 
thereof  the    sd's  lords    assigned  to   the  safi 
sir  Gwir^v  Sl*kf0zie  his  majesties  advocati 
sir  Patrick  Home  advocat  tor  bis  majesties  m* 
lerest  a  oertaiiie  day  now  by  gatne  with  crrtilU 
calkme  Tberafter  the  said  air  OeoryeM*kenzi^ 
his  ma'ties  advocat  repeated  thetlnnl  artiiie  ufj 
the  foi-sM  lybell   viz.   That  ther  being  allow edl 
by  the  king  to  the  general  I  and  other  otficerij 
of  the   Mint  Ihe  a'reut  of  twentir  lhousai*|l 
marks  yearly  as  a  stock  to  hate  h«'cri  imployeil 
by  tliemtbr  the  buying  of  bullioni?  and  ct»inf  I 
tug  the  same  and  whicTi  might  have  been  cx*1 
changed  in  gold  and  mony  tw^tie  Ivtues  in  a4 
year    Aiid  yel  they  h^re  not  imployed  tbtl 
atock  for  llie  ttia  atiwe  nfmioiiifd  iiid  dcclanA 


tl5] 


34  CHARLES  ir     Proceedings  against  the  EaHof  LMuJtrdah 


bis  ma^lies  advoeat  instiiteff  for  ]>ayiueiit  of  the 
fi>rsM  soiUDe  of  ane  liundretl  and  ei^btic  ll»oti- 
saud  ttud  six  hundred  (lounds  as  the  benefit  that 
liiith  or  woidd  have  arisen  from  the  ct>vniii£f 
atid  exchange  of  tlie  foi-s'd  stock  the  years 
*buv€  mentioned  Asptinst  which  i t  was  ailed g'ed 
Vy  tile  s'd  enrle  of  Lutiderdale  his  pror's  almrc* 
named  that  the  master  of  the  [Vliot  bein^  pnr- 
ttcullnrly  eoriecrned  in  thearticlc  tliey  must  in- 
timal  Ihe  i*ei-suite  to  him  And  alledged  thai 
ilier  was  nue  act  of  parUa't  that  makes  the 
defender  U  able  to i*  implo\ein^  the  slock  of 
Iwentie  thousand  marks  la  mainer  for^aid  nnd 
tliereceaviugfaf  the  aVeut  can  not  make  him 
lyable  tor  twentie  thousand  marks  rcmanes  i 
aiviaye:!  in  tlie  Mint  as  a  stock  -for  bnv- 
iiag  of  bidhoDe  in  cnsc  of  intcrnptione  of 
trad  and  for  defraying^  the  mexJcat  cliai  lt*^  of 
the  Alint  And  ndieras  the  &umm(>nd!j  hears  that 
the  huUione  to  be  bojiglit  with  the  forsaid  stock 
Dfi^ht  have  been  coy  ned  and  exchanged  in  qfohl 
and  mony  tvventie  tymes  iu  the  year  Itis  a 
great  mistake  it  not  being  pohsible  to  iloe  the 
same  sfix  tyiuen  in  the  ^ear  and  the  aVent  of 
the  twentie  thou^tiind  marks  n  ould  not  have  ijc- 
frayed  the  expen»cii  of  importing:  the  bnllione 
Ihe  exchano-e  in  some  vc ars  bein|>f  my  hijrh  as  it 
did  exceed  ihea'rent  oV  the  s'd  soume  VVlier. 
unto  it  was  replied  be  the  s>'d  sir  Otniriie 
B1*kenzie  his  majcii ties  advocatand  sir  I*ntnck 
Home  advocat  for  his  hit^rlmi^s  interest  lliHt  \m 
iTiQJestie  out  of  liis  princly  care  for  the  j^nod 
of  hi*i  subjci'ts  incicss  ofiiKiny  in  the  kiiijr* 
dome  and  for  advancing:  hisownrcvenew  by  ll»e 
Mint  having  appointed  tw  enlie  thousand  marks 
IU!  a  stock  yearly  to  bt^  imployed  for  buyin^j;-  of 
bullionc  to  hcj  coyned  and  'exchanged*ti>r  his 
ma'ties  nsc  and  accordin&^ly  his  maje^tie  have- 
ing-  allowed  to  tl»em  in  ther  accouDti^  the  a'rent 
of  twentie  ihoutiand  marks  yearly  They  ware 
in|ie^si(un  lidr;  to  take  atioxvaiice  of  the'a^rent 
«f  twentie  thousand  marks  yearly  and  yet  not 
imjdoy  it  for  hnymtj- of  bulhono  as  wnsdes- 
litvathy  hiH  majestie  and  y'lbr  they  aucjht  to  he 
lyable' for  that  proieit  mij^^bt  Ijave  arisen  to  bis 
fiia'tie  if  that  stock  of  mony  bad  been  impk^yed 
i'cnr  the  huyiny:  of  bidhtnio*  uhich  miyht  have 
been  coyned  and  exehan^oti  twentie  tvmes  in 
a  year  tiK  hes  In  u*e  to  be  done  in  former  fymes 
And  not  only  tbcr  %vas  alvvayes  a  stock  of  mony 
in  the  Mint  appointed  for  l»uying  of  buhione  To 
be  coyned  for  bttj  rnujesties  use  but  parti- 
cuLlurfy  iu  the  year  Im.  \\  c*  sLviie  ane 
ther  is  ane  expreissuct  of  paHia'toppoiniinprthis 
alock  of  mony  to  lie  inipU>\ed  in  mainer  fors'd 
W  hioh  thin!  article  of  the  lyWll  abore  written  re- 
peated and  itivLsted  in  alieadn^eanecs  abo^e  men- 
tioned made  aptin lit  the  wime  and  reply  made 
iberto  being  all  at  lert^h  ved  heard  Si^cn  and 
cofisidtTctl  be  the  baids  loi'ds  and  they  iherwitb 
bein^  weill  and  ryply  adv>»€d  'fhey  befitr 
uurV  ordained  the  rompt  Imoks  relaltin«'  to  tlic 
atock  Hllo\%^d  by  his  ma*tte  for  coynin;,'-  of  hid- 
litinL"  to  hr^  jiroiluctd  Ibrcleannif  how  (dten  the 
butbone  that  &hotdd  have  been  boiiiiht  with 
ibe  said  i?lock  of  twr^ntie  tlioitsaud  merka  bath 
beeti  coyned  atid  exchaQgcd  in  the  year  aud  for 


that  enecl  the  said  lords  assigtied  to  the  sH 

sir  Georjjc  !Vrkena:ie  his  majesi!^^  "^1 'f  ■ 

sir  Patrick  Honieadvocatfor  b 
rest  a  certaineday  now  byg^ain  hn  ^ . .    *..  ,4^ 
count  hooL^  relaiting-  to  the  stt>ek  and  \ 
his  mn'lit**;  ndvocai  letters  of  incident  dilti 
I  in'  I'et.fU'erie  y  \»f  Tvith  oertifii^tione  c, 
«!itr  the  said' sir  George  M'^kenzie  hi*  i 
tits  adiOL-at  and  sir  Patrick  Home  advocat 
bis  hiohites  interest  re|>eated  the  R»urth  i 
of  ihcsuidlyhleviz,  (hat  whereas  the  mony  ( 
tbiJ*  kin'^doM*ie  is  onlaiuetito  be  of  ecjunll  tiutia 
1% it b  that  of  England  vet  it  is   t*vo 
then  the  sinudert  of  J^^ngbmd  ther  hein 
indinted  plate  of  silver  cuueil  in  the  two  j 
uhtrof  ane  bal/e  lyes  in  Uie  Tour  of  f ji 
unit  the  other  was  s»ent  donu  hither  and  it  I 
hard  to  be  exiict  in  ohservin|j  tlie  uniiie  tiDnwm 
in  the  ctjyne  ther  wus  two  grains  of  ren 
allowed  upon  the  mice  of  silver   And   the  i)e 
♦coders  ha  vein  g-  allwayci  coytnHi  at  two  ^rpii 
less  of  every  ounce  and  ih'erby  puri»o»*iy  iid 
bftslcfl    the  itandel-t    anil    these    two    graia 
amonutinLi:  to  twelve  slitllinj;  ujion  the  pouo 
of  silver  they  auu^ht   not  to  have  appl\ed  ill 
same  to  ther  own  use  but  mu^t  he  coinptah' 
for  tlte  same  to  the  king     And  in   En'jldiid  I' 
remeiliei*  doe  belong  to  the  kini^  and  decUtn 
bis  n>a*(  its  ad  IOC  at  for  his  hiy^hnes  iiitrest  i 
sisled  forpaynieutof  the  fors*d  souine  of  an 
thousand    nyn   bmidrcib  and  t^^entie  (KMuidl 
yearly  the  years  above  mentjoiied  of  the  pr 
arrysmti' by  the  diference  of  the   coynefr 
the  fimus  of  the  indented  standert  plate  wid 
the  bcoetit  of  the  reniedies  bcinqf  Iwdve  \ 
liufj  upon  the  pound   of  silver  extending 
years  lylwll  to  the  sonme  of  twentie  four 
sand  pounds  A ^ninst  which  it  was  alW^ 
the  s'd  earle  of  Lauderdale  his  pror*a 
named  that  the  master  of  the  ftliat   is 
concerned  in  this  article  and  he  is  not  c*othp 
in;^  IJdo  That  the  two  grains  in  every  unce  I 
lowetl  to  the  defender  as  a  rem<'die    The  bin_ 
tdvocut  cannot  subsume  agTiiust  him  if  he  hai 
not  exceeded  the  allowance      3tio     That  tb^ 
could  bc^  noe  dam nadg'e  sn5^tained  against   Ih 
c^rle  of  Lauderdale  upon  the  forsM  accoufl 
that  the  money  is  not  of  suftitient  fynnes  lie 
cans  ther  heuij^  a  com  is*,  ion  ti  ranted  hy  th 
kiOi,^  in  aiino  Im,  vi  c.  sivenlie  tmirfor  trymg  i 
tlie  coy  ne     It  was  found  by  the  pers*mes  coifiil 
siond  ther  report  tliat  the  silver  coyue  of  l' 
kin^dome  was  above  alcvea  pennic  fynei     _ 
so  above  the  stunilart  as  the  commissioue  and 
rejKjrt  produced   bears  which   report  was  ap-^ 
proven  hy  the  kingf    Ami  iht  rfor  the  deloQ 
au^ht  lobe  assrdzied  as   to  what  uaseoync 
beibr  that  tyme  Lykeas  ther  bemj^:  try  all  take 
by  tfie  jaite commlssione  the  coyu   %%aB  fou0 
in  fynnCbS  to  be  abf»ve  the  standert  Whertmiot 
was    re]»lLe<l  by   his   in  a  Hies  advocat  aiMl 
Patrick  Borne  adviicat  for  his  htg^hnes  iiit< 
that  (he  earle  of  J^auderdale  and  lord  Maitla 
peiieralls  of  the  mint  areaNe  much  concen 
i*iid  umvfX  Ik?  lyable  to  the  kiny:  for  this  and  \ 
other  articles'  of  the  lybell  as  the  maister  < 
other  ofiicers  oftbeBlint  l^o  Albeit  lh«fr  was  lw# 


i 


•17] 


and  olhtr$,for  (Official  Mahtrtalioni. 


A.D.  1682. 


[SI 


g^rnina  of  i*eraei!je  albwed  in  caise  of  casii- 
Acetic  in  caise  tlie  Jinness  fell  to  lie  over  or 
wn»l(*r  yet  liiul  wasiio  wanami  for  ibeofBfei's 
Df  ibe  Mint  to  coyn  coustuntly  upon  the  reme- 
dies as  they  (ltd  )mt  wtiatt^vtr  be  tbe  rem«f* 
•lies  of  finni-fis  wbJtIier  casual!  or  industriously 
done  yet  the  Kaitiea  alwayes:  belongs  to  the 
kingr  *8to  As  to  tlie  dischargee  ^rarite^l  be  the 
kiny  as  to  the  tlniiess  of  the  coyn  from  tbe  year 
1  m,  vi  c.  sixtie  four  to  the  year  1  in.  ri  c.  siveolie 
thrive  It  cannot  be  extended  to  tbe  suh^iiijuent 
years  ntitlier  aiiijht  it  to  hberat  the  otiicert*  of 
Oie  Mint  even  for  these  \^!^t%  lueolioned  in  lUe 
discharge  because  the  Iryall  u|Kni  which  it  pro- 
ceerled  was  aliojfether  insuBitieut  and  by  q 
meer  inisftake  in  .swe  far  as  it  is  posiiivly  of- 
fered to  be  proven  that  tbe  tryall  was  after  this 
iniiincr  viz.  At  e^ery  luelling  ther  bein^''  a 
|)eaee  of  mony  coyned  cult  in  i^vo  peiccs  wiier- 
nl'aneof  tbe  [leaces  bein£(  but  [(jntj  in  the  pjpe 
v^ben  the  Irjall  vviis  made  .some  ol  ttiese  peaces 
being  mebed  iJoun  to§felher  they  ware  fun  ml  of 
milfitient  fynnes  Bnl  ibe  faltacie  biy  in  ibise 
that  (a  srnidl  mettin^^  tbey  wonid  a  coyoed  a 
far  greater  quantitie  may  be  ten  or  tii^elte 
Blonc  vvlntdi  was  not  ueer  so  fyn  asi  tbe  staodert) 
uiid  of  this  tbey  put  n<»e  more  in  tbe  pype  hut 
tlitf  lintfirf  of  tbe  hM^x  coyned  of  that  melting 
80  that  albeit  t her  was  a  lar  i"^ reciter  ijtmnlitie  of 
bafiic  luonyjoyneil  then  fyne  mony  Yet  ther 
wjis  a  bke  pe.icea  of  both  pnl  in  the  pipe  so 
llntt  wlien  tbe  outter  fyn  and  ibe  under  tyn^ 
fieai'cs  came  lo  Ije  melted  doun  lo|»;elher  m  a 
Jij>net  it  proveil  in  he  of  sinndert  fynnes  so  that 
nt  tbttt  tryal  ibe  b^net  found  to  be  finuer.hen 
if  lot  st;indart  wliieh  h  not  to  be  inmgiued  it 
would  have  been  if  tber  had  hucn  some  cheat 
in  it  Jor  if*  tbe  mony  coyned  ware  ahvayes 
tinner  then  the  staiuk'rt  it  wold  rprtaiuly  de- 
-Btroyed  tlie  oflicers  of  ihe  Mint  in  plnce  of 
tiiakein|:r  any  piine  But  the  cheat  was  in 
ttiis  that  albeit  tber  was  the  lykc  peaces 
putt  in  i)ie  ]»ip«  of  tbe  coy nadge  of  counter 
fin  nest  silver  and  the  coynad^e  of  the  be.st 
.inony  which  beinjj  melted  to^ihcr  will  be 
Riire  t'»  make  tbe  linnet  of  sulFitieni  fynnes  yet 
Iher  being- a  far  greater  quantitie  coyned  at  tlie 
inettiog'of  the  baise mony  thin  at  tbe  imjIlin^K 
tjf  the  utter  fmncs  silver  \u  evident  that  al- 
beit the  liy^iiet  made  up  of  tbe  peace  in  tbe  pyx 
was  of  standert  fynne*  yet  the  g^reatest  part 
€>f  the  niuuy  of  Scotland  niiybt  have  been  haise 
mony  As  de  facto  it  is  so  in  etfect  u|>ou  tbe 
maitter  tbis  was  no  trynll  at  all  and  tor  the  far* 
der  evincing  of  this  it  be**  been  trjed  that  al- 
lieil  some  mark  ]»eices  bei  of  snfiitient  fynnes 
yet  wher  three  nr  four  hundred  of  them  is  taken 
togiiber  and  lOebed  doun  in  a  It^niet  it  would  he 
fomid  to  be  very  lar  short"  of  tlie  sundert  as  to 
the  lioness  Anil  hjj  for  evidence  of  ibe  insuf- 
litirncie  of  Ibts  try  all  ther  was  no  tryall  at  all 
t«ken  as  to  tbe  weii^bt  of  the  mony  w"hicH  w  as 
als»'  inaleriall  a«  the  fun»es»  Wbitk  the  fourth 
aiti«  h'  iilttir*  lybell  repeated  and  insisted  upon 
nl  .  made  at^'ainst  tbe  same  and  reply 

«J"       ^       ncd  with  tlie  tors^d  exoneraWepro- 
4tic4:d  bciD^  all  atteuUi  red  beard  tieen  and  coti- 


«idered  be  the  sMs  lords  They  being  therwitli 
Weill  nod  ryply  advyscd  they  in  respect  of  thfi 
exoneratione  produeed  assolzied  tbe  delenden 
as  to  tbe  years  preceduig  llie  s'd  cxoneratio 
granted  by  bis  ma* tie  in  anno  Im.  vi.c.  siven^ 
lie  four  Tlierafter  his  majesties  advocai  and  s 
Patrick  Home  advocat  for  bis  bit^hnes^i  intr 
inmsted  for  tbe  profits  aboire  lybelleil  arrysing 
by  the  difftrence  of  the  coyne  from  tiie  bnne 
of  tbe  mdented  standert  plate  witb  the  beiietiii 
of  tbe  remedies  beini^  twelve  shilling  upon  thi 
[K)und  of  silver  yearly  tiince  tbe  year  Un*  vi  c  J 
sivtntiefour  And  u'lFrrcd  to  prove  timt  the 
motiv  was  coyned  con 4»lantiy  upon  tbe  rem edic 
As  to  which  tbe  s'd  earle  of  LauJerdalls  pro') 
above  named  allediired  tbe  master  was  polf 
lyahle  and  took  instruments  in  the  clerks  1iaa(( 
u[iou  biii  inlimalione  of  this  persuite  to  tbes*d 
f»ir  John  Falconer  master  present  at  tbe  bur: 
was  lyahle  to  releiTe  the  i;-enerall  of  the  Mint  Tdi 
wliich  it  was  aos^red  be  tbe  sM  sir  John  Fal- 
coner tiiat  be  dcclaii-es  he  dedyne^  to  dcfeml  in 
this  cause  so  fiirr  as  the  king  is  concerned  and 
desyres  w  bat  be  now  prapones  roay  be  receaved 
as  a  representa'one  and  not  as  tfefeoce  in  the 
cause  except  t^uoud  his  releifl*  And  as  to  ths 
copper  cQynetl  in  the  lii-st  jumey  berepreftents 
that  be  is  not  ly^ble  because  he  was  then  bis 
ffather's. servant  and  compted  lo  him  And  as  to 
the  second  copper  jurnay  what  he  did  thereici 
was  in  obcHJience  to  the  gencritll  under  whose 
jnrisdictione  he  was  and  that  he  reclamed 
scver^U  tyniesand  repeats  his  depositjODe  token 
befor  the  commissi  one  as  to  Ibih  pint  And  as 
to  the  a^rent  of  Iwentie  thousand  marks  he 
ou^ht  to  be  free  of  tbe  a'rent  of  the  half  y*of 
for  w  hich  he  is  only  lyabk'  l>ecans  he  bad  the 
mony  in  readines  and  itnployed  it  in  buying  of 
bullion  as  appears  by  bis  counts  And  if  it  was 
not  mad  use  ot  in  coynadij^e  it  vvas  because  they 
had  so  much  bullion  broug'ht  in  to  them  by  the 
mercbantst  that  they  could  not  make  use  therof 
and  bes  counted  for  the  wholl  bullion  frotn 
Im.  vi  c.  sivenlie  i'y^^  te  the  year  Im.  vi  c. 
ej4>*hUi-  Wliich  compt  ar  befor  the  Exchequer- 
ami  propones  this  for  his  releiffmd  fardcr  rcpre-" 
sents  as  to  that  article  anent  tbe  tinnes  of  the 
money  and  working  uiJon  tbe  remedies  tbal 
ther  beings  noe  injuuclioneof  the  ^uprem  otticcr 
viu.  of  the  geneiall  of  the  3Iint  to  work  con- 
forinc  to  ihe  indcuted  btandert  he  is  not  lyahle 
to  relieve  the  gfenerall  lie  acknowleil^es  thai 
tber  wi^  some  coyned  undei  the  staudert  and 
some  above  the  standeit  and  nothing  can 
be  sustained  u[>un  the  aecompt  of  the  remedies 
becauis  ther  was  als  much  coyned  above  tlu 
remcdiea  asabove[sie]  ti»esame*ro  which  itwa 
reply  ed  be  sir  George  :Vl*lvenzie  his  ma^liess  " 
vocat  and  sir  Patrick  Home  advocate  for  I 
highness  imerest  that  in  so  far  as  what  is  aU 
ledijed  by  sir  John  Falconer  as  a  detenco 
against  the  king-  It  is  answered  that  he  ought 
I vke weaves  to  be  I y able  for  thecop[>er  coyne  for 
the  first  copper  jurney  more  then  was  jil lowed 
by  tbewarrands  because  he  was  coujunctma.^- 
ter  with  hit  father  As  also  he  did  e\*crce  the 
o^ce  of  master  at  that  iytne  and  uplifted  the 


ei9] 


54  CHARLES  IL    Proeetiingi  0gahutthe  EarUflMiArdMle     [fflO 


pfoKnts  and  was  oUidged  to  know  aM  did  kndm 
that  ther  was  more  copper  coyned  then  was 
allowed  by  the  warrands  so  that  lie  is  lyable  to 
his  ma'tie  ahe  weill  as  the  generall  and  the 
king'  is  not  concerned  q't  compts  and  transac- 
tioties  was  betwixt  him  and  his  lather  and  it 
can  not  be  made  appear  that  ther  was  any  part 
ot'  the  twentie  thousand  marks  imployed  for 
buying  of  bullinne  they  did  imploy  it  for  ooyn- 
img  ot  copper  for  the  matest  part  of  that  tyme 
for  ther  eun  use  and  the  greatest  part  of  which 
they  did  coyneas  buUione  is  now  not  allowed 
for  buUione  so  that  they  had  aboundance  of 
tyme  not  only  to  coyn  the  bullione  brought  in 
b?  the  n-irchands  but  also  that  bullion  that 
ahottld  a  been  bought  with  the  kings  stodc 
and  i/hat  the  s'd  sir  John  can  clear  by  his  ac- 
oonnts  baTe  been  payed  to  his  maHie  of  the 
bulUoLe  shall  be  allowed  as  calhimnios  to  al- 
ledge  that  ther  was  also  much  coyned  abore 
the  standert  as  below  the  standert  seeing  it 
will  appear  by  the  books  of  coy  nadge  And  its 
positifly  offeretl  to  be  proven  that  they  alwayes 
toyned  upon  Uie  remedies  and  below  the 
standert  Which  alledgcance  and  reply  being 
all  at  tenth  red  heard  seen  and  considered  be 
the  s'ds  lonls  They  bcfor  ans'r  allowed  a 
conjunct  prolialiune  for  clearing  how  much  hes 
been  coyiiod  below  the  standert  and  how  much 
above  the  standert  since  the  year  Im.  vi  c. 
aeventic  four  And  for  that  eflect  the  saids  lords 
assigned  to  either  parties  pro'rs  above  nanied 
a  ceiiaine  day  now  bygaine  and  ordained 
either  |Kirtie  to  have  letters  direct  at  ther  in- 
atance  for  summoading  of  such  witness  and 
prubutione  And  sise  to  produce  such  writts 
right;>>  reasons' and  documents  as  they  had  or 
t\tjuid  use  in  the  said  maitter  against  the  said 
day  withcertifica'on  &c.  And  also  the  s'ds 
lords  ordained  the  wairden  and  counter  wair- 
dens  books  to  be  produced  and  granted  dilli- 
genceto  thesM  sir  Geor&fe  M*Keuzie  his  ma'- 
tics  udvocat  against  the  wairden  and  counter 
wainltns  tor  that  effect  Thcrdfior  his  roa'ties 
advo(»at  and  sir  Palrik  Home  advocat  for  his 
hiifliiivs  interest  repeated  the  fiftli  article  of  the 
tbfb'd  Kuriunonds  bearing  that  a  con$dderable 
pairt  of  the  silver  coyneof  thiskingdome  under 
tbe  pretence  of  silver  called  chisell  heads 
scraps  and  sweps  hes  been  melted  and  printed 
without  any  essey  and  so  ought  to  he  (»niis- 
cat  to  the  £ing8  use  and  decTaired  his  ma'ties 
advocat  insisted  for  payment  of  the  fors'd  soume 
of  nyn  hundreth  auft  sixtie  thousand  pound 
coyned  without  any  essey  and  therby  confiscat 
in  mainer  alKive  ly belled  Against  which  article  it 
was  represented  and  alledged  by  the  said  sir  John 
Falcnncr  tluit  it  had  been  alwayesthe  custome  of 
the  Mint  that  the  chisell  heads  and  scraps  which 
ware  a  part  uf  the  pots  befor  ware  melted 
againe  in  presence  of  the  wairden  And  it  was 
thought  that  tlior  was  as  great  securitie  in  that 
as  if  ther  hade  been  any  essey  and  when  any 
try  all  was  demanded  he  was  alwayes  ready  to 
give  the  same  And  als  it  was  alledged  be  the 
sM  earle  of  Lauderdale  his  pro*rs  a£ive  named 
liMt  w  to  the  othOT  officers  of  the  Hial  they 


had  ther  oommissione  from  the  king  And  tbo 
generall  could  not  invad  any  .other  offiom 
and  seeing  sir  John  Falconer  who  wae  DMSter 
withdraws  from  defending  in  the  came  And 
informs  against  tbe  earle  of  LaaderA&le  the 
earle  can  not  be  liable  for  his  malversyalioMe 
lyke  as  ther  are  two  easeyesviz.  the  p^  eney, 
which  is  only  taken  mr.privat  knowledge 
And  ane  otlier  essey  which  conceoiea  the  puV 
lict  and  which  is  taken  after  the  peaces  have 
gotten  the  impressione  and  whenn  ther  cen- 
not  be  follzior  and  this  aiticle  is  hot  small  ex- 
tending to  ten  stone  or  thefeby  To  which  il 
was  replied  be  sir  George  Bi'kenMe  and  sic 
Patrick  Home  advocat  for  his  highnes  istoresl 
that  the  forsaid  fytlh  articie  stands  relevasl 
notwihstanding  of  the  ans'r  because  it  bemg 
clear  by  the  Taw  that  no  money,  should  be 
coyned  with  essey  if  conlrar  to  the  lewis  it 
be  unwarrantable  coyned  it  most  belong  to 
the  king  And  for  the  greater  securitie  that 
therbenae  money  coyned  without  the  cssaj 
and  that  the  cuntrey  be  not  abuiaed  with  baiae 
mony  ther  are  two  essey es  used  in  the  Mini 
viz.  the  pott  essey  and  the  essey  used  ai  the 
printing  and  both  cheeff  essey  es  must  be  weed 
and  if  any  money  be  coyned  without  theae 
esseysit  must  belong  to  the  kiqg  as  keinff 
coyned  without  essey  And  therfor  the  cliiseU 
heads  swips  and  scraps  not  being  esseyed  at 
the  pott  essey  whicn  is  the  first  eaaey  ^  and 
grvat  securety  against  the  coyning  oi  beise 
mony  was  renielte<l  they  might  hbve  'melted 
als  much  alley  with  it  as  they  pleised  and  which 
is  the  great  occasione  uf  so  much  baise  mony 
that  hes  been  coyned  in  this  kingdoiBe  fiir 
albeit  it  be  preteodit  that  ther  was  ane  essey 
made  thereof  at  the  printing  yet  that  can  be 
no  securety  because  at  that  essey  ther  is  oolv 
a  i>eace  taken  out  of  a  whole  trogh  full  whiee 
may  be  is  of  ane  other  melting  which  of  pufr 
pose  is  made  of  standert  finness  yet  the  aMMl 
part  of  all  the  rest  of  the  pcices  in  tlie  trogh 
which  is  coyned  of  the  chisellheads  and  swcfp- 
which  they  doe  not  suffer  the  pott  essey  i^ 
the  melting  and  so  may  be  mixed  with  abe 
much  alley  as  the  officers  please,  may  be  att 
baise  mony  And  it  is  not  a  small  quantitie  tb^ 
hes  been  coyned  atler  this  mainer  for  it  is  ofp 
fered  to  be  proven  that  neir  a  third  part  of  thft 
mony  coyned  in  Hcotiand  these  years  by  peel 
hes  been  coyned  without  essey  Whilk  fiftb 
article  of  tlie  lybeil  above  written  repeated  siiil 
insisted  upon  allcadgeances  above  mentioned 
nuule  for  the  sM  master  and  generall  and  reply 
aboYc  specified  made  tlierto  being  all  at  lengtk 
read  heard  seen  and  conndered  be  tbe  s'de 
lords  they  notwithstanding  of  the  former  aL* 
ledgeances  ffand  the  s'd  fyflh  article  of  ihe 
lybdl  relevant  and  admitted  the  same  to  iktm 
persewcrsprobatioue  And  for  proveing  thcraf 
assigpied  to  tbe  said  sir  George  Mckenzie  hip 
ma'ties  advocat  and  sir  Patrick  Home  advoeeft 
for  his  higlmess  Interest  a  certane  day  now  b^ 
gaine  and  ordained  his  ma'ties  advocat  for  )up 
ma'ties  interest  to  have  letters  direct  at  his  i%i 
atanoefor  suBunondhig  of  nieh  witntis  «mI 


m^dmtken.for  Official  Mnhenatluns.  A,  D.  l6l|2#  [I 


IjrolNiiiooe  anil  alse  lo  (iroduce  stVcli  writts 
rights  reiifiotieB  asxl  ik^cuiaefils  9»  h^  h^d  or 
woulij  u&ti  fur  |irc»vin£f  tbcreiif  «gfnin'«t  ibc  s^d 
iJ»y  I'beri^fUriliv&Kidsir  GVi'  '  nziehis 
tna'ties  idvuciit  aud  sir   Ta  n^   »d- 

vocAt  for  Uiti  hig;hiK'si!<  altt'r».^t  r 
IbrsiM  jiixtuiiiclti  of  Uie  foifc'd  Uf 
Ihfti  ibtT  wii'  different  weights  tnad^-  u^f*  <it  ni 
Uie  ooytut*  boime  in  Bwafar  as  bis  uia*tie  id 
annu  Itii.  vi,c.  iijclje  tw^  btivt^og  »  j^iyit  of 
wetgirs  by  ctintruct  witb  tJiw  iiia«)tor  u^  ibe 
^"iut  of  Kii^liiiid  tbcy  seiiidowu  tbnt  pvU  gf 
'  ]»tH  li»  tfiH  eark  of  Lauderdale^  \^itb  a 
le  of  tbc  mM  ooiitr^ict  wbi<  h  wcigbtft  ware 
111  Ills  ket^ ping  anil  )fet  Ibf;  biilboiie  Wa«  takeit 
wjtb  tbc  d«an  of  ^^nild  of  Edir^Mirgh  bis 
weigbUaiidtli  vasUouedwithtbefrac- 

tioD««  of  tlie  1,  1 .1-,  Atifl  tbe  sM  earle  is 

.  JjaNe  bavcih  ja  bi^  keep- 

uti^aodbavf  I  ,  iour  in  the 

hiwdrtlli  '  ^  ihe  lorMl  ilidereDt  weights 

ftnd  decl  >Vu' lies  ad t^oc'at  insisted  upon 

Ibe  fors'ti  -11 M  rvi  iickof  tbe  lybell  for  tbe  Ibrsd 
BOunie  of  fuurtie  tlioitiiand  pound  as  the  four 
of  tbe  bnudn^ib  of  tbe  buJitone  IvbeJU^J  tliat 
ibe  dean  *it  gutldsi  wci^bts  ware  beefier  then 
tbe  pyll  in  tbe  covDzie  hciu£«  for  wbicb  the  de- 
fcndei^  are  tjable  agtott  wbich  it  was  al- 
ledged  be  Ibe  s'd  earieof  Lauderdale  bis  pro'rs 
•bore  aamed  That  be  denyed  that  artick  in 
•wa  far  as  couceroes  tbe  earle  tbat  be  made 
Ilia  of  dttlen^^nt  weightjj  and  as  to  tbe  rent  of 
thioficifrK  of  tbeAlint  tbe  earle  cannot  be 
lyiliie  tor  lb  em  in  tbis  for  tlie  law  haveing 
aUott^ed  tbe  marcl»ants  eitber  to  bring  in  tbe 
baUione  tu  tbe  Mint  but*  to  pay  go  iDuch  luo- 
B«y  tbe  general  I  wah  not  concerned  ivbow  sir 
Joan  Falconer  made  bis  bari^an  Wberimto  it 
%*^as  anVred  and  reprtsenUfd  by  Ihes'J  sir  Jobn 
Falconer  tbat  tlie  lo«kintf  lo  tbe  weigbts  is  in- 
cumbent tirst  to  tbe  Wttirden  and  tben  to  tbe 
gen«rall  And  lie  knew  not  of  the  first  pyll  of 
weights  sent  down  imlill  tbe  fourth  day  of  Fe- 
b'ry  laait  and  uesw  Imd  any  order  or  intinoa- 
tione  from  tli  '\  lu  make  use  of  these 

vretebU   To  ^  v;isdnplyedbj' tlret-arle 

of  Lauderdates  pro 're  above  naiued  that  be 
knew  not  of  ibe  standert  till  tbe  year  Im.  vie. 
wxtie  Riven  and  tlien  tliey  ware  sent  douu  and 
U*e  inony  trwnd  with  these  weigbu  But  bow 
or  with  what  weights  the  master  reeesafed  tbe 
tidlione  he  was  not  concerned  it  not  beiuif 
linder  the    iv  of  tbe    general!  or 

wairden  to  lo  eip^ht  uiitiJl  the  money 

be  coined  u:  ta  receave  in  the 

bullionL*  wiib'  M*  same  for  ivber^ 

4i>«**"^^'' ""  in  rvuHs  tbev   war« 

(•^^  f  e  ttnd    not  taken  by 

^•if';.  jij  WHS  tinv  ibtni^  batsc 

tkerwas  so  lutjcb  abaitiHj  of  tb'e  ptyce  and 
tli«  butbunc  arrot<*  accordingly  to  the  goods 
iaiporlrd  And  tlie  i^^wrvAW  not  bavtnng  r«- 
C«airi^l  tbe  bulbon  nor  bein-^  o6b'id^e:d  to  rc- 

"       f^  Ibe  Mime  hut  the  master  by    the  act  of 
ameiji  \»  aljowed  eilbtr  to  receiifelbe  bul- 


Iki  in  tbc  ori^inaK 


UcMie  or  mony  for  the  same  and  if  \\^  excee^'J 

bis  war  rand  he  augbt  lo  nu^V  fur   ■■ 

And  the  clerk  wan  ako  a  check  u^» 

that  this   debait  i»  uunf^^ce&sojy  ic(| 

be  bis  ma'ties  advyciit  aud  u\  loniif 

■■"■'■■  '  '■'  ■  '  "-■  Ulgbue^  i'ii'  '  !  '  c 

:d    wllSt  ^ 

to    be    ly V  I 

and  its  po,siL.<^ 

oJbcers  of  tbe  ^ 

wjtii  tbe  deau  ol   ^-     -       _  i     * 

of  ihe  hiindredib  beamr  tben  \\x<  Iscois  pyij 
of  weights  and  tbiil  they  aiiainp  tvonrd  the 
peaces  with  tbe  fractiones  » 

VVbilk  ^AxX  article  ot  the  h  i>  - 

aisled  one  alledgfanee  moAie  |or  tUi^  K<ii\^  (4* 
Lauderdale  gen^all  and  the  w'y'  matie  b/ 
the  ninstei-  aiul  duply  tiode  tbertv  togitbi^r 
%vith  tbe  ansV  above  writtea  u^«   W  bip 
ma'ieis  adrucat  to  the  baill  Being  all  at  lentU 
read  heard  and  ^eeti  and  cotii^idered  be  tbe  s^dp 
lords    they  repelk-d    tbe  fors'd   ;illeadgeanc^ 
tm/Ae  fur  tbe   bM  )2;enerall  and  umister  ol'  ilia 
Mint  in  respect  of  tbe  lybell  aud  reply  butriug 
tbat  the  officers  of  the  Mint  receaved   in  tby 
buUione  with  the  dean  of  Guild  of  Edinburgli 
bis  weights  and  troned  the  inouy  with  tbe 
tractions  of  the  kings  weights  whilk  the  s^dfi 
lords  flTand    relevant    to  be  proven  *  pro   lU  ' 
*  dc  jure'     And    for  proveing  tberof  and    of  \ 
tbe  quau title  of  tbe  buflioue  lybelkd  in  tbe  hM 
sixt    article  the  saids  lordti  assigned  to  tb« ' 
s'd  sir  George  Mckenzie  bis  iivVttes  adf ocut  | 
and  sir  Patrick  Home  advocat  for  bis  liigbn^^ 
interest  ane  certaine  day  now  by  gaine  aoU 
ordained  bis  ma' ties  advooat  perse wer  to  have 
lettcrg  direct  at  his  instance  for  sumfooiuling  qf 
such  witnesses  and  proba*one  aud  alse  to  pro- 
duce such  writts  rights  and  docuiaeofs  as  b^ 
had  or  would  make  use  of  iar  pmTciug  tb*?raf  ] 
against  the  sMda^  Tbtrafter  tbe  s'd  sir  G«ofgtt  < 
>rkeuzie  bismajestus  advocat  and  mt  Fatriok  \ 
Home  advocat  tor  bis  higbues  interest  repealed 
the  fursMfleiveDtb  article  of  tbe  tyMI  anenttba 
profit  of  the  exaltatione  of  tbe  mony  and  coyn^ 
biince  tbe  pro<:>tamation  w  bcrby  tbe  mony  ww 
cryetl  up  being  three  ttbilling  two  pentiios  one 
the  uncc  and  the  pro^t  of  t^jcaltatione  as  to  the 
bullioiTP  %i'lucb  was  in  ti»e  Mint  tbe  lynje  qf  J 
'  and  declaired  bis  ma- ties  advoc^t 

the  B*ds  profeil«  of  the  exidtationt» 
IviHjJctl  Lxtendiug  lo  tbe  »'d  soume  ol"  aijtlren  j 
thousand  und  two  liundre^l  |K'imds    And  tlie  ' 
pro  tit  f  if  two  hundretb  s»ton  of  silver  l^^  i»g  m 
the  jMint  house  tbe   tyme  of  tbe  rxaliationc! ' 
amounting   to     eight     thousand     jKJund    for 
whkb  tht  y  are  lyable  to  bi^  umjostic  Agaiust  , 
^bicb  article  it  was  alMgt'd   be  the  s'd  earle  , 
of  Laudvi^inle   hiB   pro^rs  nliorc   named   ibil 
wher  the  marclntnK  tk'"*^ « «l  '"   moi  ♦v  in  place  J 
of  bullion  tbcrt  (be  b«iM^! 

fiteof  tbe  exultf  1  .    .    *'  in  ttokr  ! 

rn'i'haahilJing  Hcols  in  (lijice  ot   the  oimce  of  ] 
bulli**ne     And  in  tbat  <?fir«c  tire  officers  of  the 
Mint  prof  yded  by  ib<?   bultione  and  ^btrthe 
tnarchantsgavc  tn  tbf  builioni>  be  bade  tbe 


923j  84CHAAtESn.    Proceedingi  against  the  Eart  of  lauierdak    [SM 

weight  by  the  marchants  in  svre  ikr  as  ooo- 
cernes  the  kings  interest  and  assigned  to  liis 
majesties  aclTocat  for  bis  highness  interest  a 


benefite  of  the  exaltatione  as  is  clear  by  the 
prodaniationc  crying  up  the  money  for  the 
marchants  bein^  'backward  in  giveing  in  bul- 
lione  to  the  Mint  to  incnrradge  them  therto 
it  was  appointed  that  they  should  hare  the  be- 
nefit of  exaltatione  and  so  wheras  befor  the 
prorlaniationethey  got  fifiie  fyve  shilling  eight 
pennies  for  tlie  ounce  of  buUione  afterward 
they  got  fiflie  eight  shilling  ten  pennies  for  the 
ounce  And  therfor  the  defender  cannot  be 
found  lyable  in  the  exaltatione  mony  unless  it 
could  be  alledged  that  the  same  was  re- 
clamed as  the  marchants  b^  the  officers  of  the 
Hint  and  as  to  any  bullion  imported  and  bought 
by  the  officers  of  the  Mint  they  ought  also  to 
have  the  benefite  of  the  exaltatione  in  reeard 
of  the  hazard  of  the  exchange  and  others  which 
they  can*  To  which  it  wto  replyed  be  sir 
'George  M'kenzie  his  majest's  advocat  and  sir 
Patrick  Home  adTOcat  for  his  highness  interest 
that  seeng  by  the  fors'd  act  of  parliament  anent 
the  bullione  the  marchant  men  were  allowed  to 
pay  in  twelve  shilling  for  the  ounce  of  bullione 
which  the  gencralls  and  master  of  the  Mint 
liaveing  imployed  for  bullione  and  lb  coyne  the 
same  for  his  majesticf  use  the  king  augbt  to 
have  the  benefite  of  the  exaltatione  of  the 
bullione  imported  by  the  marchants  seeing 
tliey  bought  the  bullione  at  so  easic  ane  raite 
since  the  proclamatione  for  crying  up  of  the 
money  as  befor  And  it  is  positi?eIy  nflercd  to 
be  j^ruven  by  the  earle  of  Lauderdale  and  lonl 
3Iaitland  ^neralls  in  ane  compt  betwixt 
them  and  sir  John  Falconer  they  craved  pay- 
ment of  the  exalt'on  money  and  that  by 
the  same  reasone  they  cfaved  payment  tlier- 
of  from  the  maister  by  that  same  reasone 
it  must  be  dwe  be  them  to  tlie  king  non  of 
them  can  pretend  right  thei*to  but  the  l>encfit 
therof  must  bcloncr  to  the  king  And  albeit  the 
marchants  should  have  the  benefit  tif  the  exal- 
tatione yet  the  officers  of  the  Mint  can  not 
make  it  appear  that  they  payed  it  to  the  march- 
ants and  they  have  noe  riglitto  retain  it  them- 
selves and  thertbr  they  ought  to  pay  it  to  the 
king  Which  scvinth  article  above  Cvrittcii  and 
alleilgeances  made  against  the  same  and  reply 
above  specified  made  therto  being  at  Until 
read  heanl  seen  and  considered  be  the  sMs  lords 
they  fliind  that  the  profieit  of  the  exultntionc 
as  to  ail}'  bullion  and  coyned  mony  lying  by 
the  otHcers  of  the  Mint  the  tyme  of  the  exal- 
tatione belongs  to  the  king  As  also  as  to  any 
bullione  imported  by  the  officers  of  the  3Iint 
since  the  crying  up  of  the  monv  that  the 
profite  of  exaltatione  lykewayrs  befongs  to  the 
king  and  as  to  the  bullione  sold  and  delivered 
be  the  marchants  in  weight  to  the  ofYicers  of 
the  Mint  The  benetite  of  the  exaltatione  be- 
longs to  the  marchants  confonne  to  the  act  of 
counsill  viz.  three  shilling  and  iv^o  peniiicii 
upon  the  ounce  And  tbeHop  the  sMs  lords 
•ssolved  the  officers  of  the  ANnt  as  tu  the  ex- 
mltatfone  of  the  bullione  sold  and  delivered  j*.) 


*  So  in  the  Original, 
t  80  in  the  Original. 


certaine  day  now  bygaine  Ifor  prbv^ing  the 
quantitie  ot  the  bufiione  and  cnyned  moaj 
lying  by  the  officers  of  the  Mint  the  tyme  oif 
the  exaUatione  fors'd  and  of  the  bullion  im- 
ported l^  the  officers  of  the  Mint  since  the 
crying  up  of  the  mony  and  ordained  his  ma- 
jesties advocat  to  have  letters  direct  at  his  in- 
stance for  summonding  of  such  witnesses  and 
probation  and  alse  to  produce  such  writti 
rights  reasons  and  documents  as  he  bad  use  of 
for  proveine  therof  against  the  s'd  day  Ther- 
after  the  s'd  sir  George  M'kenzie  bis  ma'tics 
advocat  and  sir  Patrick  Home  advocat  for  bis 
highness  interest  repeated  tbe  eiffht  article  of 
the  above  written  lybell  anent  tbe  yearly  in- 
tereit  and  piofeit  arrysmg  by' tbe  bulliona 
payed  into  the  officers  of  the  Mmt  by  tbe  mar- 
chanU  and  lyin^  in  thcr  hands  yearly  th* 
years  above  mentionat  and  not  cuynied  And 
also  the  nynth  article  of  the  s'd  lybell  anent 
the  melting  doiiu  of  the  leg  dollors  and  doncat- 
douiis  since  they  ware  current  in  the  king- 
dome  and  which  current  mony  being  melted 
doun  is  not  to  be  considered  as  buUione  Bat 
tlie  defenders  notwithstanding  therof  mnst  be 
comptable  for  tlie  twelve  shilling  Soots  which 
they  receaved  from  tlie  marchants  for  the 
ounce  in  place  of  bullione  soeng  they  ongfat 
to  have  bought  bullione  with  the  tame  '*and 
not  melted  doun  the  current  mony  of  thelciiig- 
domc  wlierby  tlie  king  and  his  sulgects  re- 
ceaved noe  advantage  But  lose  Aifd  declaired 
his  majesties  advocat  insisted  for  his  highne* 
interest  upon  the  s'^s  two  articles  for  payment 
of  the  soumes  above  written  therin  contaSbed 
confonne  to  the  summonds  A^ins  which  it- 
was  alledged  by  the  earle  of  Lauderdale  his 
pr'ors  above  named  IVinio  That  tlie  gcuerall 
of  the  Mint  is  not  concerncil  in  the  nynth 
article  but  only  the  master  Secunijo  By  t>* 
hiindrclh  luurtlc  nynth  act  fyilecuth  parlia^t 
king  James  the  sixth  forraigne  coyne  naav  Itt 
melteil  doun  And  also  the  sM  sir  John  Fal- 
coner compeired  and  acknowledged  the  mell* 
ingdoun  of  foragne  coy n  current  in  this  king^ 
dome  because  he  found  noe  standfng  lair 
against  it  and  that  it  had  been  tbepraetiief 
the  i^lint  formerly  which  considerationes  nndift 
him  to  doe  it  \Vherunto  it  was  ans'd  be  thi 
pro'r  above  named  for  the  sM  earle  of  Las* 
derdale  that  they  desyred  it  might  be  mariied 
that  the  master  acknoM  Knlires  he  had  noewlur* 
rand  from  the  generall  lor  melting  doun  tbe 
currant  mony  of  the  kingdome  To  which  it 
w:is  replye<l  by  his  ma'ties  advocat  and  flir 
Tati-ick  lloim;  advocat  for  his  highness  inter* 
e^t  that  as  to  the*  ])rofitc  of  the  bullione  iiB* 
ported  by  the  mor'ts  and  not  covncd  yearly 
by  llifi  officers  of  the  Mint  an  J  as  to  tM 
nieltiitg  doun  of  the  dollers  ducatdonns  and 
other  run-ent  money  the  gVrall  master  and 
other  officers  of  the  Mint  l>cing  conscious  Hi 
the  same  are  lyable  to  the  king  in  solidum"it 
being  expressly  provjdsd  by  the  fiflie  nynth 

4 


t,/or  Official  Malvfratih 


ftCt  paHia^t  ibcrta;nth  kirtf^  Jtimei  the  si*€Ofjd 
that  ib«  coy  Hers  coyti  noe  itioiioy  thuin  cryed 
U>  have  coursv  Id  the  laud  undei'  the  painc  of 
tifatb  And  more  fully  by  ihe  six  tic  fyvt  act 
parliu^t  eight  king'  Jame«  the  third  by  which 
Its  provydi^d  ihiU  in  r««w>ct  when  mooy  is 
tnelted  i(oun  rt  ts  dtiutnistied  wastcil  and  'dis- 
tn^yed  in  the  tniiisintione  by  the  tire  to  tlie 
fpy^t  prfjiidii'v  oi'  the  kin^uome  Tbertbr  iioe 
niony  tbttt  is  current  iu  ihi;  kiui^dome  should 
b«  melted  doun  for  buUiooe  wtlhout  special t 
boence  and  charge  fronj  the  kin^  And  by 
the  stvent«i!Dlii  act  parlia't  tir^t  kiii^  Jametii 
the  sixth  the  nicUingdauo  of  current  nciony  is 
dincbar^d  under  the  painc  of  ei^cbeat  with 
the  half  of  ther  mDv'lls  for  tbo  first  Mi  And 
of  the  hafll  rnov*11s  for  the  second  fait  against 
llie  owner  and  mdter  which  does  not  dcrogat 
fp"  I  cd' unrlia*t  kin^  James  the  second 

d(^  _;    the    same    under    the   pain  of 

deuiii  uiM'ii  1!^  lykewnycs  agreeable  to  the 
common  law  by  which  it  is  provyded  that  the 
uieltiug  iluini  clipping-  diminisbin^  or  oiber- 
vrtiye^  att^^i-in^  the  curTv nt  mony  of«  any  na- 
lioue  19  punUtiabio  with  death  and  if  punish- 
able with  death  much  more  aofrht  the  mony 
aonteheddoun  be  confiiicat  to  the  kiii^;  Al- 
beit the  melting  doun  of  the  current  niouy 
bad  been  only  simply  di«;hai^ed  and  no  pu- 
niitbment  at  all  ejected  but  only  that  the  !uime 
hade  bt^n  discfaar§fed  by  tbe  law  It  ware  a 
Uatumll  and  just  punishment  to  punish  the 
COOlraviners  of  tbe  law  by  oonfiscating  the 
subject  by  which  they  contra%'eefi  the  law 
An<l  allhiit  this  punishment  ware  not  exprest 
but  here  there  can  not  be  tbe  leai*t  doubt  or 
iniestiuue  l>e<^iiuse  by  the  la.st  fict  the  nidliniLr 
liuune  of  the  current  mony  is  dLscbart;c<l  undc*i 
the  pHiue  ot  contiscatione  ot  balfe  of  ttie 
tuo%eHls  for  tbe  tir^t  fait  and  of  tbe  batll  move- 
able* for  tbe  second  talt  and  the  defenderi*  hes 
not  only  committed  one  fait  by  one  mcltintr 
uoun  orthe  current  mony  but  all  this  wbyll 
by  past  for  many  yean  togitber  did  lykewaycs 
melt  doun  the  dollars  and  doucatiJouns  and 
otbf-T  ctirrt'nt  mony  in  place  of  bullioue  to  the 
ill' 1  '^lu;e  and  trade  and  impoverishing  of 

til  ^ic  which  a  the  great  reasooe  tber 

jH  sti  iiur  uiofiey  111  ihe  cunlrey  And  ther  bes 
lieen  much  ot  the  ibraigae  cuyoe  that  in  cur- 
r<-rr  ■*'  •'  '  '  '  j-dome  melted  doun  ADd  ooe 
ii  m  as  it  pugSt  to  have  been 

tf  ■  u  wonder  tber  should  be  any 

ii*  Jiiig  in  tbe  cunirty     And  uemg 

t;  tlu'  iiH  ItLTs  doun  of  tbe  current 

lii  iod  with  the  contisicatiofie 

cil  timi'b   rnoie  with   the 

Oiitili»<  Ml  li  >  ^    ^     A   meltiLHi  doun 

being  -  -u    .  i     ifeiu  Liw  and  their 

In'  Iv  !l  '  iv>o  hundretli  fourtic 

li  1    I        i|j  king  Jstmet  tlic 

%ai  AUnMii'^  till  '  '  uyoe  tub«  br<jugbt 

in  to  icrve  »»  bul  OMtji^i^  cuuniiM 

iMuae  ^  '  ,\  :ui  }%  only  a«  to  tbe  for- 

rti^i  («  tiut  to  have  course  in  the 

ktngdoi,..       i^  Id  Hbicb  it  Vffti  0)0»4  iust  and 
foouiibk  that  it  abotdd  ba  llliU«il  Oouu  for 
VOL.  XL 


bullioue  but  that  c,anni>l  b^  ^\(endit  t»*  for- 
mignecoyne  that  is   i-  ' 

a«  to  wlucli  foimcr  1 1 

down  tlierof  stands  yttjiiiLiT     aim  a*  un>^  m 
clear  by  ibe  law  50  the  reasooe  of  thu  law  in 
most  just  and  c«]iut«hle     For  when  f "  '  "■  ? 
coyne  is  appoynted  to  have  cout^e  in 
dome  Its  noe  more  looked  upon  as   i  ,    : 

but  our  own  coyne  it  being  appointed  t"  t  >>-  »* 
owr  own  coyn  by  his  ma*ties  warriUKHo  Uiat 
as  tbe  melting  doun  of  our  own  coyne  would 
be  a  con trai^ent rone  ol  tliese  laws  by  that  aame  j 
reasooe  the   melting  doun  of  forragne  coynt 
thats  appointed  to   nare  course  in  the  king*  f 
dom  as   our  own  And  if  tbe  defenders   bad 
melteil  doun  our  own   coyne  as  that  would  1 
have  been  confUcat  to  the  king  ao  by  tb«  I 
s^me  re«UH>ne  the  doUers    and   doncAtflounet  I 
which  ware  current  mony  being  melted  doua  ( 
coutrar  to  express  laws  wnder  so  severe  pu»  ^ 
nishment  aught  lykewaye*  to  be  coutiscjit  to  I 
the  king  without  allowing  tbe  same  as  bullione  1 
or  aoy  thing  upon  tbe  accompt  of  dewes  of  J 
coynodge  tor  the  reasoncs  fors'd  and  otbcrtJ 
above  niHiituiitrtl  n  hitting  to  the  copper  coyne  J 
V  tt  artjcleaof  the  sM  lybclt^ 

t    ,  1   t  ;  .1   upon  alledgeanoes  pro* 

pooed  tor  the  earle  of  Lawdcrdale  dfelaratjuut  j 
of  the  said  majiter  of  tbe  Mint  and  answer  j 
alH>ve  written  being  all  at  lentU  beard  read] 
seen  and  corisidireil  be  the  saids  Lords  ^^i^j\ 
ifand  the  fon»M  eight  aiticle  of  the  sM  lybcU  ! 
anent  the  yeat-ly  interest  and  profile  arr}  Hitig  b/ J 
the  bullioue  payed  in  to  the  officers  of  the  Mintl 
by  the  marchapts  and  lying  in  tber  baudtj 
yrsjrly  fln<l  not  coined  in  due  time  rclevatilj 
;ind  aduyittit  tbe  wiilie  to  the  pcrsiewer**  proba- 
tioue  And  also  fTaiH!  t»  >"«  ♦'"^  •"liing  dowai 
ol  the  *follors  tbesair  i  mony  i«1 

the  kingdome  and  li  »ince  thttj 

tyme  they  u are  cut;  lume  can* 

not   be  nilowed  tu    tu  lh  bulhbn#1 

hirt  thai  not  with  stand  mg  they  are  eomptabl«| 
tor  the  twelve  sbilline  HcotN  which  they  le- 
ceaved  from  the  marchants  tor  tbe  ounce  jml 
place  of  the  bullione  And  udmiltit  tbe  saiAl 
nynth  article  to  the  nerscwern  probattone  an^i 
for  that  effect  the  saida  lonU  abaigned  to  the  1 
naid  sir  frcorge  M'Kcn/ie  and  sir  PatnclLl 
Hume  adrocat  for  bit  majcstica  tntereift  a  «*er-  j 
taineday  now  bygaine  for  provt  *  •'  r  tail 

eight  and  nynl  article    And  or  »^a 

jesties  advocat  to  bftir«  letttfTK  il*^  ^.  »•  iiui  ia 
iftance  for  bummonding  of  kucIi  witness  hd^I 
probatiotie  and    *N*    «"    produce  fc<**b 
rigbtif  reasones  iu«(ii»  en  I 

proveiog  tberot  ■  ^  «-  nid  du v 

air  George  M^KcoKic  tiia  ma'h 
Nir  Fatriok  Home  adrocat  for  1 
tcrc«t  rci^entrd  tlje  tbrsaid  lent 
*aid  lybell    That  tbe  enrb'*  ol    i 
ccufcd  doiible  payriK*nt  ol'  thr 
•*  master  of  tbe  Jlint  vL/.  mn 
cw«;   of    lidV  by    a  pmxpt   tiotu    tlir    king 
And  lyk«  *vayt*A  Ktr  John   t^aleooer  who* 


•  9o  ta  tb«  Oiigiidl 


fSTJ 


34  CHARLES  II.'    Proceedings  &gmiui  ike  E&rl  of  Ltmiardak     [888 


offered  to  be  proven  and  lie  augfht  to  retbund 
ane  of  tlie  souines  payed  lieingf  four  thousand 
Bvn  hiindi'eth  pound  Lykwayesreiieuted  the 
eleTenth  article  of  the  above  written  lybell  vis. 
that  the  defender  got  six  hundreth  iwnnd  ster- 
ling as  a  bud  or  bryb  from  sir  John  Ffalconer 
to  obtaine  his  accounts  allowed  by  the  exche- 
quer And  alse  repeated  the  last  article  of  the 
above  written  lybell  viz.  That  the  carle  of 
LAtiderdnle  delerider  extorted  a  sonme  from 
the  wairden  for  the  third  nartof  the  remedies 
of  wei<^ht  alle't  due  to  the  counter  wainlen 
Whcras  the  generall  of  the  Mint  being  the 
kings  comutroller  and  these  remedies  belong- 
itig  to  tbc  King  to  whose  use  he  should  have 
•cen  the  samen  applycd  and  yet  he  cau«ed  the 
niony  due  for  these  remedies  to  be  i>a\  od  to 
iiimself  Against  which  it  wns  alledgedbe  the 
fe&id  earle  of  Lauderdale  his  pro'rs  nbovenamed 
(denying  the  suid  tenth  and  eleaventh  articles) 
that  the  said  eleaventh  artide  was  calumnious 
and  the  earle  is  content  to  fmd  the  sauK^n  re- 
levant to  be  proven  prout  de  jnre  And  as  to 
the  last  article  alledorcd  that  the  remedies  of 
the  weight  by  immeinoriali  possc-ssione  be- 
longed to  the  wairden  and  counter  wajrdcii 
and  ther  is  nothin;:  in  the  lybdl  as  to  the  re- 
medies of  weight  and  if  these  belong  to  the 
king  then  this  article  will  not  have  place  To 
which  it  was  replyed  by  his  ma'ties  advocat 
»nd  sir  Patrick  Hfome  advocat  for  bis  majes- 
ties interest  that  the  remedies  of  weiglit  are 
Only  allowed  to  coyn  npon  and  to  save  them 
from  hazard  when  tliey  are  not  without  the 
remedies  But  they  must  not  work  industri- 
ously upon  the  remedies  to  the  pr^udice  of 
the  countris  which  if  they  doe  the  remedies  be- 
longs to  the  king  and  not  to  the  defendera  or  to 
the  wairden  or  counter  wairden  the  same  not 
being  in  itselff  allowable  and  nothing  being 
dwe  to  them  by  ther  ordinArio  tees  And  it  is 
offered  to  be  proven  that  the  officers  of  the 
!11int  wrought  industriously  upon  the  remedies 
^'hich  were  due  to  the  kin|S^  and  the  per- 
tewer  needs  say  noe  more  but  that  the  de- 
lenders  lies  transacted  upon  that  which  belongv 
to  the  king  Wheninto  it  was  dnplyed  be  the 
Mid  earle  of  Lauderdale  defender  his  pro'rs 
ftbovenamed  adhearing  to  ther  former  alledge- 
Bncf's  that  his  majesties  advocat  aught  to 
lybell  the  last  article  thus  that  in  troning  the 
peaces  coyned  albeit  they  were  not  found  of 
"ftuffitient  weight  yet  that  they  ware  stumpted 
and  vented  which  consisted  m  the  generalPs 
knowledge  But  if  after  the  troning  and  stamp-  ■ 
fog  the  peices  be  found  not  full  wc^glit  it  is 
nothing  to  tlie  defender  To  which  it  was  tri- 
ply ed  ne  tJie  said  sir  Oeoi^e  M*Keozie  his 
Katies  advocat  and  sir  l^trick  Home  advocat 
for  his  majesties  intrcst  That  they  opponed 
their  former  rcplyes  that  the  officers  of  the 
..  Mint  did  indoKtriously  tron  the  peaces  ui)on 
"tfie  remedies  and  the  officers  of  the  Mint  did 
•o  malv«rse  as  to  the  particullar  that  wlier  a 
peace  came  to  be  troned  of  a  just  weiglit  they 
iHd  throw  it  bark  and  cansed  sheive  it  domic 
^amediaa   H^  tftw/  <«biiantly  and  in-; 


dustrionsly  tnmed  the  pcioea  upon  the  reme* 
dies  >Vhich  three  articles  of  the  lybdlaboT« 
written  repeated  and  insisted  H|Km  alleadgaBcet 
made  against  the  same  reply  and  duply  abovo 
specified  made  therto  being  all  at  tenth  read 
heard  seen  and  considered  be  the  saids  lords 
They  ffand  the  forsaid  tent  article  of  the  said 
lylicll  anent  the  earle  of  Lauderdale  bis  re- 
ceaveing  double  payment  of  bis  three  years 
salluric  above  mentioned  relevant  to  be  proven 
trripto  And  als  faml  the  forsaid  ellevintD  arti- 
cle of  the  said  lybell  anent  the  carles  reoeaving 
a  bud  or  bryb  of  six  hundred  pound  sterling 
from  sir  John  Falconer  to  obtaine  hisaooouots 
allowed  in  exchequer  relevant  to  be  prorea 
prout  de  jure  And  before  answer  to  ne  last 
article  of'tlie  said  lybell  the  saids  lords  allowed 
a  joynt  probatione  viz.  to  the  iiersewer  to  prove 
that  the  oOioere  of  the  Mint  did  work  indiistri- 
ously  upon  the  remedies  of  weight  which  ait 
doe  to  the  king  and  the  quantitie  of  the  reme- 
dies and  the  wairden  and  counter  wairden  to 
|)rove  it  by  custome  of  the  Mint  ther  was  sny 
thing  due  to  them  out  of  the  remedies  of  weicfal 
for  tner  office  And  reserved  the  coosiderAe 
of  that  point  anent  the  a'rents  untill  the  oon- 
clusione  of  the  cause  And  the  saids  lords  as- 
signed to  his  majesties  advocat  and  sir  PUrick 
Homo  advocat  for  his  majesties  interest  a  eer^ 
taine  day  now  bygaine  for  nroveiiig  of  the  lor- 
said  tent  and  elevinth  articles  of  the  said  lyMl 
and  als  that  member  of  the  forsaid  interloqoe* 
tonr  upon  the  last  article  of  the  said  lybell  ap- 
pointed to  be  proven  be  the  said  persewer  And 
alse  the  saids  lords  assigned  the  samen  day  fbr 
the  pro'rs  of  the  wairden  and  counter  wairdsa 
above  named  for  proveing  tlie  other  member  of 
the  forsaid  interloo'r  upon  the  last  article  of 
the  said  lybell  and  ordained  either  partie  to 
have  letters  of  dilligence  direct  at  ther  instanoi 
fbr  summondingof  such  witnesses  and  proba- 
tione and  also  to  produce  such  writts  rights 
reasonos  and  documents  as  they  had  or  would 
make  use  of  in  the  said  maitter  against  the 
said  day  reserving  to  either  partie  to  dgssl 
contra  producenda  and  against  witnesses  m 
termino  as  accords  Thendler  the  said  sir 
George  M'Kenzie  his  ma'ties  advocat  and  sir 
Patrick  Home  advocat  for  his  roajestes  intreit 
insisted  against  the  said  Mr.  James  Falconsr 
as  representing  the  said  decdst  John  Faloootf 
his  father  laitc  wairdan  ufton  the  passive  iMss 
and  particularly  as  successor  to  him  tiiulo  §^ 
crativo  for  his  raalvei-satioiis  in  relatione  to  the 
copper  coyne  and  other  articles  abovcuMB^ 
tioned  and  fbr  payment  of  the  soomes  if 
money  arrysing  thcrby  as  also  against  ^Mk' 
bald  Falconer  late  counter  wairden  fisr  thu 
abuses  and  malversations  comitted  he  hin  hi 
relatione  to  the  article  abovementioned  It  WM 
alledged  by  the  said  31r.  James  Falconer  Ihr 
himselfe  That  he  hes  ane  dis]>o6itione  fnm 
his  father  fbr  onerous'  cans'  an<l  the  same  is 
with  the  burden  of  his  debts  and  this  lyMI 
being  for  vast  soumes  of  mony  lie  dcsyw  % 
tyme  may  be  allowed  to  him  to  advise  wlmi 
answer  at  wMl  make  theito     And  alseft  wm 


K. 


^]  mni^otheri./or  Offieial  Mahinaiionu 


A.  D.  l«52. 


[S 


«iMgedb«  ibe  mid  Mr  Ximcs  Falconer  at 

f*r  for  the  said  ArchbaUl  Falconer  Thai  the 
1  ArchbiJtl  aii|flu  to  \v&  ajiaaljcied  )j«caus4^ 
^\\  is  bui  hill*  Ix^jug-  ^raut£^d  allGr  the 
4»eda  of  malfersalion*-  lyli^Mi**!  To  whilk  it 
WM  revived  be  \\\h  im  /  t   aud  sir 

Ffttnck  fioiiie  ad  vocal  :  i(il4>rc^t  j 

thai  a«  (4  tl>       "    '  '      ^* 

James  Falci  i 

'  the  ftti : 

I  nblJV»  ;.]....     ..^.iv;l., : „ 


I  liie  above  writtfn  urticliss 

-^ ,^        (<»r  Uie  sauines  tiboveineii- 

Hf^nedtobmi  be  ntuit  instnicitbt;  ooi^roiis  v^um 
f>f  Uic  difipo^iittan  uml  albeit  he  sibuuld  iuOruct 
the  onerous  cauw?  iherof  Yet  uotwithsUoding 
hv  uiusi  be  tyal»le  to  bts  itiHJestte  for  tt»e  dis- 
|io»iiJun*»  k'iug  (jrantt'd  by  \lw  i\ia\%ex  Ut 
ihe  HAid  Mr.  J  unites  Fabniner  durein*^  bi^ 
iruwt  tJie  tyr»j<^  lie  was  in  the  t>ffiu*  lis> 
prcsUKied  iti  iaw^  the  sAme  h^s  been  t^rantiHl  ot' 
nj€^ti*i  The  ihtb^r 
thai  by  the  ati^ 
"  -  -  t-'  MioiMjd  Ihj 


purpofi 
iiciciff  t 


be  admiue<1  to  probatiane    As  to  which  it  wi 
represeuled  by  4!ie  sM  brd  MaitUmd  that  in 
was  minor  wht*n  he  was  joyned  in  the  romi; 
sioue  witb  hiit  father  anno  Im*  ^}  ^^  '^' 
Anil  tbis  being  ane  aciiooe  at  his  tu- 
y  unsi  him  he  wouU!  iieil 

u^dvocat  to  debaite  ^ 
lu^fjs  to  be  iorarmcii   u> 
El  he  was  jovned  in  the  i:c' 
M.i  Uibcr  u«  Vd  Is      .4itd  that  Lv  im^^«< 
I  the  second  cojjjier  jurnay  that  bcii 

^*,„.lud    it)    parli^-'itt-'i'     n,n-^)m    ij     lit-    lii'i    n 

ftOil  abo  by  a  f  f  ] 

iie  wuf  oil 
■       ■  _  ,ii.jo  iheyr 

lui.  VIC,  ftiveulie  lii^ii  be  ht«d  uti  lH.'ne5l  no 
siiUaiic  uor  any  nf  the  peimiisits  of  the  Mia 
add  that  tJ)er  wa^  no  particuUar  warrand't'a 
uruci?^in£>:  him  his  tna'ties  \rarrand  nnd  uaMij 
m^  all  the  oflioers  fif  the  Mint  thai  waj'e  to  hi 
perkcwed  whtrin  he  i»  not  iiiimrd  ntiitjh  hj|| 


Icr 

ho    ] 


d»^»('(•l^l  \ytituf  or  aha- the 

Whilik  ibove  WTJttt^o  pro* 

for  tin-  *.  <iii  Mi,  James  and  Arrfdmid 
Ooeni  iumI  reply  iibo?e  written  made  tljevto 
•insf  all  at  leuth  red  heard  seen  and  consi- 
dered b<:  the  s'ds  lords  they  hniW  aii3V  or- 
Gained  the  a'd  Mr.  James  Fah^mcr  to  produce 
the  di«|f<i«itiooe  ^mnied  to  biiu  by  his  fall^er 
ftod  ioatruet  tlwa  ooeron  leof    A «  also 

bel#r  a»»*r  ortlaijieit  Am  Icimer  to  pro- 

<tiiM  his  gifi  aad  for  iL,.,  >  ^  <^'ds  lord» 

•«ai|ra^  lo  tlM  saiii  Mr.  Jar^  r  a  cor- 

UUMda^r  now  hygainc  foi  ,.  il,* >s.M 

^§fmkwne  and  to  iitslruct  (he  < 
tberi>f     As  also  ta  pr'Ofluct;  ibe  s 
FftlMMMHTB  ^iii  wjtb  ajl  i4h^t  wnxu  n*? bts  rea- 
mmm  and  diOcumeots  he  lind  or  would  muke 
I  ol'la  ti>«  8'd  tnm*r  E»o- 

lemmtiti  the  b\\  «.  to 

I  majesties  ailviM-at  to  oh^t-A-l  ivuira  f.r^idu 
Themiiec  ihi.^  s'd  ttotione  and  cnofc*  bc- 
f  agaiic  cut'    '  ,'  of  the  s'ds  lor^lii 

|iiiVt4«S:i  \tirick  llomcudvo- 

t  tor    hi«    lO.iM.  s    ,ui'  .     .1r;-Viirr.1    !t|.'\    m- 

aifU  Hicliard  Uh'I  V  i:.i  ,i>.l   .-.  •    riiiiict 
iffOetttJlof  the  Mini  !  vMi^d  oi  ttta 

^muammui  with  bin  t  he  may  be 

^od  IjrahW  1W  all  h  >i.J  iicf^  uMi] 

-■^-^-lel  maUet-i^jatiiMi^  ^'t  ill  re- 

lobwownolhr         _  r  in  rda* 

» to  i[ic  other  otficf  p»  i*i  liw  M ml     Ami  for 
lone   rttid  iiuymcftt   of   ttk*'  ^oomes  #f 
niony  ^  i  auiJ  re- 

•Iwl  ih<*  »'dg 

'  *i^  irie  ui' LaiiUcj^:  li<:r 

'^>  I  j^'ftntrail  and  •  ihe 

iyian.ij  iiif'ainst  the  Und  .>i.ull;viid  an 
r  ^9t^^ct  geucfuU  q|*  |i|^  M^*^  nugllt 


And  albvit  he  wl>. 

■i    rrsiitlvt-ii    111    urn 


bti 


nh'r  tolI»c  lybdlyf 


hik  ina  uc  uick  Home  i 

vocal  fur  I  <  That  albeii  1 

ford  MuitliiJid   li^d  ha^iii  mm^^r  when  be  Vi% 
coiyoyned  with  hk  father  in  the  othce  yet  I 
ou^ht  to  be  lyable  for  any  abuses  nnd  inalve 
SJLtiones  committed  m  that  office  by  the  olh^ 
officers  of  the  Mint  f;ceng  he  >ia«  the  supiea 
otBcer  of  tiie  1^1  int  conjoyurd  uirh  hi^  tlatbd 
and  had  potier  to  ixtutroU  all  the  orticers  of  th 
Mint  and  to  hold  courts  and  punish  dchnc|oei] 
or  at^-  ■♦   "'m    ..(i-.-^    tf  iht*  3Jint  tbat  ha 
utal  V  that  he  n  as  [ jjV  origl 

oin'-.  Jlint  ritiiouriU'?'irUw 

abuses  c>  '-y  t^ 

lie  aught  1^  <|i»ij" 

iuto  I  iii  I     I  rti  that  tbt?r  iiad 

no  a.  I  111  ilw  I ^.sumcs  committed  in 

btioiii?  iiitrtti  And  it  auy  of  the  othccrs  lis 
mah^n^ed  he  as  one  of  the  ^eneralls  au;j^bt  ip 
iuuc  ptintsheil  them  wy^  wayes  acquautcrd  Uis 
majestic  that  ha  mi>flit  have  remhved  tit  em 
from  tbtr  ofhcc* and  repeat-*  the  lormer  grounds 
upon  wbicli  IIk'  carle  ol  L;iuduTdalc  hi*  ttutier 
\ras  found  ly«hU;  to  hiiii  majesniL'  Ami  %%  htiras 
it  ik  alledfifcd  by  the  lord  ftiuitJand  that  he  was 
tninor  whcu  Lc  was  coojoyntd  m  il»*i  oliioe 
aud  ih^  he  waii  ^Mt  of  the  kmifdouic  smcu  the 
ij  \n\.  vir.  viviiaic  it  IS  au^'Vi'd  if  a  mtn 
I  le  coil !  Hi  lit  ao  y  ab  uii 
■  **  his  i«morciy  will  iM>t. 
ix  huu  from  ihe  refill utiuue 
nod   incio«tir»-  Mi.Umuiii    *-*|;« 


year 

acitM'i 

the 

the  i^rnt 

nw.nt!.   1 


llltM^ 


-hii  ' 


fiice  wiiti  hitf 
utHcf^iH  tor 


vii\»iv4'ttty  %>hi<5h 


i»  i)^ 


34  CHARLES  11.    Proceedi 

Act  fif  matrcrsatiorie  as  can  be  for  if  a  mnn  ac- 
cept of  une  office  cif  tnist  e«()eciaUy  of  ^reat 
trust  as  to  have  inspectione  of  tlie  Mint  and 
covnailg-e  which  is  of  so  great  a  concernmunl 
to  bis  uia*tic  and  the  ^vhollkiagdome  and  whu 
by  ibe  nature  of  his  office  was  to  redarpiie  and 
c(>ntir€ill  the  other  oflScei-s  and  punish  them 
Ivheo  ttw^y  committ  faults  if  nny  man  in  such 
a  trust  Should  be  negleg-ent  and  Je&ert  his  office 
he  aucfht  not  only  to  bo  lyabl«  for  these  things 
tfiat  are  incumbent  to  his  own  office  but  for  the 
abuses  and  mahersations  committed  by  the 
other  officers  under  his  power  and  jurisdictiot|e 
And  albeit  ther  was  no  particuilat  warrnnd  from 
his  majestic  for  persewing-  the  lonl  j^laitland 
with  the  oth6r  officers  of  the  Mint  it  does  not 
import  for  this  beint^  only  a  process  for  a  ciTell 
eflect  of  the  ivstitulione  the  kin^  adrocat  is 
sumtiently  warranted  by  vertue  of  his  office  to 
oersew  aU  civill  actiones  whorin  the  king-  may 
ne  concerned  without  anie  speciali  warraud 
fVom  his  niDJeMtie  and  all  that  can  be  alledged 
lor  the  lord  Maiiland  ,is  alrcudy  proponed'for 
llis  fat!  I  or  and  repeats  the  former  itJterloqV  ag-'t 
his  father  Which  suramouds  abo?c  wriltcn  re- 

]>eated  and  insistf^d  upon  against  t!»e  lord  Mait- 
and  alleilji^ances  proponed  for  him  and  ansVs 
above  wntten  made  therto  being  ail  at  Jenth 
read  heard  seen  and  consider^  be  the  sMs 
lords     And  they  therwith  weill  and  ryplv  ad- 
'vysed  they  ffand  that  the  lortl  Maitland  being 
conjoriietf  wiih  his  ffalher  in  the  commissione 
that  tiio  proccs  most  also  goe  one  against  him 
allbogh  he  declyncs  to  propone  any  defence  in 
tbe  cimse     And  therfor  the  saids  lords  admitted 
the   lybell   acfainst   him   to  the    said    ptrs'rs 
"j>rot'atione    And  for  that  eflfect  assi^ed  to  his 
*liia*tif:s  advoc^at  and  ^ir  Patrick  Home  adroeat 
^for  his  ma'des  interest  a  ccrtaue  day  now  by- 
Cfaine     And  ordained  the  s'd  perscwer  to  have 
Jetters  direct  at  his  instance  for  summondin^of 
^auch  witness  and  probatione  and  alse  to  pri>ituce 
'audi  wrttts  rig'htB  reasones  and  documents  as 
•he  had  or  cnuhl  wse  for  proveing^  the  points  of 
4he  fors*d  lybeli  a^^ainsl  the  s*d  day  witn  certi- 
"ftcalione.  r.  as  ane  act  made  be  the  s'ds  lords 
'  'pxtant  in  proces  b«ars     At  and  afirr  the  wbUk 
"'ferrae  sua  assi^^nd  the  s*d  actione  und  cause 
I '"beiniT  ng^riine  called  in  nrcsencc  of  the  sMs  lords 
jkhcsM  sifGeorf^e  3I*keazie  hisma'iies  advo- 
[^cat  and  sir  Palntk  Home  ad?ocat  for  bis  hij^h- 
f»es  interest  ffor  proveiniy  of  the  scverall  pumts 
und  articles  of  the  fors*d  lybell  flbund  relevant 
'  find  admitted    to    his  ma*ties    prohatiune   in 
'  tnainer  ubore  ^pc'cifird   craved   that  tbe  lords 
^iiiijlit  LTTint  wttrrand  for  tfun^iiiiiiiMr*   <,r  i^^ 
!   pa|K.n*s  produced    ! 
r  i)|iointed   hv  bts  jiut'i  <x 

.lite  Mmt     And  df;  s,  und 

v^tfirrK  f  AkpTt  hrtbf  •  "nnpnl 


-  lords 
ine  to 


1 


Lib  iiiM  uaatiM  rciauiu^ 


lu  xuv  niitn  cuu' 


htg9  ugaln$t  the  Eart  of  fjiv^t^dale 

fiifmc  whcrunto  tliesM  Jan;  ' 

duced  the  books  pnpers  and  <h  ;  "*• 

inir  viz.  Imprimis  Ane  unsitljcijMjtl  compt 
of  copper  bearing  that  the  weight  T«ist  waa 
twelve  thousand  four  hUndreih  and  nynlie 
three  stoos  three  pound  priutetl  value  is  twd 
huodrethnyntie  tour  thousand  four  bundreth 
fiftie  fyye  jwund  four  shillm^  conned  Is  war- 
rand  is  two  bundreth  aiitie  six  thousand  fyv a 
bundreth  and  ttrenty  ane  pound  m\  !>hi1liO|^ 
eight  pennies  Remedies  light  is  twentie  si?en 
thousand  nyn  bundreth  thertie  four  pound 
fiiventeen  shilling  four  pennies  just  balfe  m 
threttein  thousanti  nyn  bundreth  sixtie  six 
pound  fifteen  shilfmg  four  pennies  As  the  »*cl  ^ 
accompt  containing  ane  poscript  one  the  end' 
tlierof  snbscryved  be  Alexander  Maitlaiid  bear-- 
ing  that  he  being  called  and  cx>mpeirand  km* 
for  tbe  committie  and  interrogat  whose  haiid 
writt  the  above  written  account  or  paper  waa 
declaired  be  belives  the  same  to  be  hand  wril* 
ing  of  David  Maiiland  bis  brother  bears  Item 
two  leaves  toren  out  of  book  containing  the  ac- 
compt of  the  copper  coyned  in  tbe  months  of 
January  February  IMarch  A  prill  May  June 
July  Se[*terabcr  October  November  and  De- 
cember Im.  vi  c.  siventy  nyn  January  and  Fe* 
bruary  Ira.  v i  c,  eigbtie  subscryved  one  eteiy 
page  by  Arch  bald  Falconer  Item  atae  couirt 
from  the  exchequer  containing  the  complnit 
charge  of  bullione  arr^sing  both  upon  the  ex. 
jiort  and  import  of  his  majestieB  kingdotae 
siaited  tugither  with  the  accounts  of  the  parti- 
cull  ar  ports  and  precincts  and  collectors  cuuntt 
therof  both  Htted  and  untitled  And  also  bul- 
lione that  does  arryse  from  them  what  they 
have  payed  and  what  is  yet  resting  both  in  the 
tyme  of  tbe  severall  tacksmen  and  general  col- 
Icetors  betwixt  the  first  of  November  Im.  Wc* 
sixtie  ane  years  And  the  fii-st  of  November 
lm>  fie.  siventie three  perused  and calculal  by 
WiUiam  earle  of  Dundonald  twentie  fytlh  oi' 
February  im.  vie.  siventie  four  And  bearing 
that  the  charge  of  the  bullione  which  the  maa- 
ter  of  the  Mint  hes  receaved  from  the  several! 
colle<;tors  and  marcbanls  tbe  tyme  of  the  ao* 
compt  eictended  to  tbe  weight  of  one  thotisand 
two  bundreth  fiftie  eight  stone  fourteen  [lOutid 
one  ounce  at  eleven  denire  tine  and  als«»  con- 
taining the  account  of  discharge  And  in  one 
of  the  articles  therof  hearing  that  the  a'd  air 
John  Falconer  compter  discbargefi  InmaeUwilh 
payeil  to  my  lord  Haltou  no  general  I  of  his  ma- 
jesties Mint  for  his  fees  ordinary  und  extraor- 
dinary being  per  annum  two  thousand  six  bun* 
dreth  sixiie  and  one  pound  siv  shdUug  right 
pennies  wherof  four  nundreth  pound  per  an- 
num as  the  generall  halfe  of  the  stock  io  the 
Mint  conforme  to  tbe  act  of  pai  i^  a 

parte  and  included  in  tiie  s*d  v  j  lU-rie 
which  being  resting  since  Decern  be  i  Uu.  vie. 
sLxtie  years  he  say  he  payed  to  hislo'p  for 
twelve  years  viz*  from  December  lra«  vi  c*  aix* 
tie  tilt  DHeeml»er  Imr  vir,  Kivf^ntv  twf>  years 

.ih 

uuii  «;ti^ntif;  bix  puuuus  ocotx  money  aa  ino  aM 


^miatm 


^■^■rita 


.a 


Bd 


2S3j 


ond  o(krrs,fer  Offldal  Mahtnationt.  A.  D.  1688. 


[SS* 


acciiuiils  cpnUiniflg-  several  uther  articles  and 
iijifin  tUeeDdctiriUitning'ane  f^H]«ci'i|it  siibficr^ved 
be  Juhr*  duke  of  Lauderdale  his  ma'ties  cnn»- 
missiouer  for  ill e  tyrae  John  earl  of  Roiht^ss 
lord  high  chancellor  aud  William  earle  of  Dan- 
dofittld  lords  commissioners  of  his  ma^ties  the* 
•aiir«  And  als  hy  sir  John  Falconer  himsplte 
ilatod  the  16th  day  of  March  l«i.  vi  c.seavioty 
four  yeai-s  l>eanu^  Ihe  s'd  acconiit  of  the  charg-e 
mid  discharge  to  he  examined  perused  and  cal- 
culul  hy  lliem  at  more  lenth  bears  Item  t^f^o 
letters  siihscrvTed  by  Arch  ha  ki  Falconer  direct 
for  sir  John  Falconer  one  daited  the  iberleenth 
day  of  August  Ini.  Tic.  seaventle  nyn  years 
and  the  oy'  daited  the  sixt  of  September 
1  m,  f  i  c.  seventie  i\y  n  years  I  tern  ane  other  mis- 
siTe  lettei"  subsci-yved  be  Archibdkt  Falconer 
and  Da?id  Maitland  direct  for  sir  John  Falconer 
dailed  the  third  day  of  September  Im.  vj.  c. 
seaTiiily  nyn  years  aciiuanting'  him  that  the 
dav  betbr  the  lord  Holtoun  beine"  in  town  gai^e 
orjers  by  Daviil  Maitland  to  taJl  to  prinling" 
^ith  all  expeditione  containing  severall  other 
pur rku Hal's  Ittim  ane  other  letter  snb5cryved 
m  Oavid  Falconer  daited  the  tenth  day  of  Sep- 
tember tra.  vie.  siventy  nyn  years 'direct  to 
sir  John  Falconer  shewing  him  that  Master 
Maitland  was  at  the  couynzie  liouse  one  S«- 
turnduy  befor  wiio  at  ther  desy  re  spoke  to  rniis- 
ter  Ueightman  for  furdering-  of  the  work  And 
that  the  lord  Haltonn  was  there  y ester  day  a 
considerable  apace  of  the  tbiicnoon  being  very 
HfiilJ  pleased  with  ther  expeditione  and  con- 
tainingf  §evei'ttll  other  particullar*  Item  ane 
unsubscry veil  letterfrom  my  lord  Haltoim  dait- 
ed the  eight  day  of  December  Im.  vie.  sea- 
vinty  nyo  ye^T%  direct  to  sir  John  Falconf?r  de- 
siring- him,to  shew  David  Maitland  his  precepts 
auil  recept  given  by  him  for  mony  giolten  since 
ther  last  account  and  with  him  to  prepair  the 
iiccornpi  for  the  lord  Hattoune  to  shorten  the 
lyme  which  he  knew  he  could  not  spaire  for 
o(htT  busincs  And  shewing^  him  he  rcfen^dto 
David  Maitland  to  tell  him  his  thog-btM  Item 
ane  other  letter  svbscryved  by  mylond  Hattoun 
daited  the  twtlft  day  of  Februarv  Im.  vi  c, 
and  eightie  years  direct  to  sir  John  falconer  de- 
siring sir  John  to  shew  the  bearer  thereof  not 
only  his  rcceptn  but  all  that  he  had  to  say  as  to 
the  s'd  lord  Halionn  part  of  the  rxpenu*  frreat  and 
email  and  leHinif  him  that  he  knew  the  hearer 
^as  Irn^led  hy  him  And  so  he  lieliooved  to 
pivpairall  the  accounts  Item  ane  receipt  be 
the  8'd  Charles  Maitland  lord  Haltoiic  daite 
the  fourih  of  Jannary  im.  vi  c.  siventy  nyn 
y«ara  Wherby  he  grants  him  to  have  re- 
^e«?«d  from  sir  John  Falconer  jtiastcr  of  the 
BUntcomplcit  payment  of  the  equnll  half  of 
the  protit  of  alli^pper  coyne  coyned  betwixt 
the  fors'd  day  of  June  Im,  vi  c.  siventy  siven 
and  the  first  day  of  Jaunary  Im.  ?i  c.  siventic 
II vn  Item  ane  other  recei*i  be  the  s*d  Charles 
^Ittitland  dated  the  tivelrt  day  of  May  1680 
%vherby  he  ^ants  him  to  have  then  and  of 
befbr  to  har«  rexjeaved  full  payment  ami  satis - 
tact  lone  from  sir  John  Falconer  master  of  Ym 
ina'tiot  Mint  of  the  profite  of  the  but  copper 


jumey  coramensing'  from  the  first  of  May 
Im.  vi  c.  sea?enty  seaven  years  to  the  oon- 
clnsione  therof  beings  the  tenth  day  of  Fe- 
bruary Im,  vi  c.  ,eii>fhtie  years  beings  the  fret 
profit  of  the  eoualJ  half  therof  coolorrne  to  his 
majestes  gift  Item  three  little  papers  or  g^oe- 
rali  scroll  anent  (he  divisioneof  the  copi>er  re- 
medies Item  ane  caocelle*!  contract  betwixt 
Charles  Maitland  of  Haltone  gcnerall  ot  the 
Mint  and  fiir  John  Falconer  dated  the  twentie 
ei^ht  of  March  Im,  vi  c.  sevinty  s«*avejfi  yenri 
wherhv  the  sM  gfenerall  assigned  to  the  said  sir 
Mm  Fttlroner  tlie  equall  half  of  the  twelve  shil- 
ling- to  been  [ail'  oriV.]  psid  in  by  the  marclmnts 
for  each  unceof  buliionein  place  of  the  said  bul- 
lione  and  that  of  the  siyd  year  viz.  from  tlte 
iirst  of  February  Im.  vi  c,  sivcuty  sivcn  to  the 
first  of  February  ]m,  vi  c.  seavinly  eight  with 
all  fioumes  of  mooy  that  should  aryse  therby 
or  should  be  payeil  in  place  of  the  bullione  for 
the  s*d  year  tor  payment  to  the  B*d  generall  of 
two  thousand  marks  In  lew  and  satisTiictione  of 
histrwe  and  Uw^uir  pmfits  of  luroishing  the 
s'd  hullione  and  containing'  ate  diijcharge 
upon  the  back  v^^^  »ubscryve<l  be  the  said 
Charles  Maitland  daited  the  Fourth  of  J  an  wary 
]m.  vi  c.  siventie  nyn  wberby  he  grants  hittt 
to  have  receaved  Ibll  payment  of  the  eonlenls 
of  the  s'd  contract  as  also  of  the  like  soume  of 
two  thousand  marks  for  the  snbsccpient  year 
from  the  first  of  February  Im.  vi  c.  seavinty 
eight  to  the  Unit  of  February  Im,  vi  c,  seveinty 
nyu  conforme  to  the  s'd  sir  /ohn  Falconers  banll 
ot  the  daite  the  Iburth  of  Aoj^ust  lin.  vi  c* 
seavintie  siven  years  Item  &ne  other  receipt 
subscryved  be  the  said  Charles  Maitland 
wherby  he  grants  him  then  and  of  befor  to 
have  receave<l  from  the  sM  sir  John  Faleonw* 
master  of  hi^  majesties  Mint  the  soume  of  two 
thousand  ruarks  in  full  payment  of  his  pairt  of 
furnishing  the  half  of  the  bullione  not  fiayed 
in  specie  by  the  marchanis  at  tweUe  shilfing 
per  ounce  conforme  to  the  prio'l!  act  of  (iarlia*t 
and  thai  from  February  to  February  eonfoi  m 
to  the  tbrsM  contract  and  agreement  made  Iht* 
twtxt  the  said  sir  John  Falconer  and  him  and 
acknowledgeing  biiii  to  be  ^^atisfied  therof  to 
the  Iirst  of  Fem^ary  Im.  vi  c.  .eigiity  years 
as  the  s'd  receipt  bears  Item  the  cojipit!  of  ane 
order  snperscryved  by  Iub  ma*tie  and  sub- 
scry  ved  by .  Covealric  secretary  dated 

the  twenty  seavinth  of  August  Im.  vi  c- 
siventy  tyve  anthoriKing  aiid  requiring  tb^ 
wairden  of  (he  Mint  in  the  Towr  of  Inindon 
to  deliver  ane  of  the  pyls  of  Scots  weights 
unto  Richard  Maitland  esqiiir  ane  of  the  ge- 
nerallfl  of  the  iMint  in  Scothuitl  to  becaric<l  into 
Scotland  by  the  s'd  generall  and  to  remain  ther 
with  the  otfacers  of  the  Mint  in  the  s'd  kingdumc 
as  the  said  coppy  attested  by  the  said  Uichard 
ftlaitlaud  and  bearing  the  saraen  to  have  been 
compaired  with  the  originall  which  wits  given 
to  him  by  master  Slin^j:sby  master  of  the  Mint 
of  In  gland  and  which  attestatione  is  daited  the 
fourth  of  February  Im.  vi  c,  eighlie  two  years 
item  ane  coppy  of  the  comparisone  of  the  Scots 
and  English  weights  from  great  lo  smftU  Item 


i 


133] 


34  CHARIja  n,      Pr&miinfriif:mntke  Earl  of  Laudtrdafe 


riuary  1m.  vie.  sciTinty  nyr.  till  the  tcnUi 
Fehniary  Im.  vie.  vighlie  ycfti's.  llcrtrauM 
abievial  of  Ums  huUione  furtrt  of  the  bofiki4»| 
exchequer  from  November  Im.  vie.  sixiie  aoi 
^1  Ni^v.-^iMhvr  im.  vie,  eightie  yenrn  Item  im 
t  of  the  cuynie  houw  ooiit^tiii 

Thomas  Achisone  tntWler  coy 


lIie«*<IChir1ea  MaitUiiH  htscloimeanenthifl  pre* 

te&Lioni  iti  lurnt^hm^  the  halfof the  billione  con- 

iMniag  tlic  tlrpuciitions  of  mr  John  Fulconer 

Anshmld  Falconer  and  Jatnes  Funjuar  one  the 

cud  And  back  therof  laJcen  by  the  commi&sion  | 

appointed  hy  his  maje^tie  for  tJie  Mint  with  sir  i 

Joiio  Falconer  bis  ans'rs  therto  and  reply  for  ' 

the  said  lord  Haltoae  aud  Richard  Mitland  lord  i  both  charge  and  d i sch arcf c  from  the  sea vinUi  da/ 

juMiee  clerk  to  the  said  aos'rs  coutainin^  the  •  of  Aprill  Jfu.  vt  c.  eig£tie  two  to  the  Brsl  of 

depoflNione  of  »jr  John  Falconer  sir  WiThatn  LAugitbt  Im.  vi  c.  and  wis.  *  yoirs    Iteai    Iht 

8war(i  and  Jamea  Farf]uar  on  the  end  therof  I  count  and  rc^^ester  of  the  silver  called  ttie  four 

lakea  by  the  s^d  commisfiioners  tor  the  fiitat  '  mark  pea^^es  tu'o  mark  {^mcta  and  half  marll 

Ifeno  ane  onier  or  precept  snhscry  ved  by  his    peices  past  his  uiajesiUes  irons  Inioi  the  tw«iitie 

majestie  and  inhscryved  by  John  earle  of  Lau-  jtwoday  of  July  inclusive  Im.  vir 

derdale  aetTeiary  daited   the   iourth  of  June    the  fourth  day  of  Doceiuher  lii 

Im,  ri.  c  si  xtie  three  vears  requiring  the  Ui^'r  ^  three     liem  arte  account  oft-: 

prin'll  thea'r  deput  antJ  collector  of  hh  niaje«>tie8  |  majesties  irons  from  the  seaviiii 

eitcyfO  to  pay  to  tkie  iM  Charles  Maitland  of  |  Itu.  vi  c.  stventy  tour  to  the  ti4i.»..,..    .....  ,.   .* 

UaJtone  or  any  liaveing  hti  order  four  htm-  i  Decemher  Itn.  vie.  oiglitie  aue  yeara  Jtiniiauf 
dreth  and  thertcen  pounds  sterJin^  a^  certain  I  account  of  stiver  past  his  majcatit^  iv.iu.  tmra 
bygone  tees  rosittij^f  to  him  as  genera)  1  of  the    the  seavinth  of  A^irill  lui*  vio.   sevir  * 

jiiat  of  Scotland  ami  that  out  of  tlie  first  nod  the  twentie  ane  of  October  Im*  vie.  <  ^  ^  ^ 
readiest  excysie  ot'  this  kiuf^dome  with  the  lord  with  ane  pa^^e  conUtiuiug  aoeaccoatu  ot  kt^v 
Ballanden  Ijia  onler  one  the  back  theiof  to  I  coyned  in  Dect^ruher  Im.  vt c.  ei^^hty  mm 
Tlkomas  Moncrie/ffor  paymetit  of  the  s*d  four  '  nuary  February  aud  May  Im.  vie.  f;i|pblU 
iiundrelh  and  therteeo  pounds  sterling  And  Togither  with  ane  leaff  ofpii[KT  cMintainMr 
the  a^d  Charles  Maitland  his  diiichar(^e  daiteil  aceount  o)'  silver  past  his  luaHieiy  irans*  ftt^ 
the  fvfth  of  Juni.  im.  vi  c.  sixtie  four  years  j  eight  day  of  May  Im.  vie.  ei^htie  t«ro  lo 
g'rantingf  the  recept  of  the  a'd  soiime  from  the  <  fourth  of  Augusit  the  said  year     Itt^n 


Lid  lord  Ballandeii  lord  tht^^r  deput  for  the 
tyme  Item  ane  nmtuall  discbarge  betwixt 
Ckarlea  Maiiland  of  Hat  tone  genera  1 1  of  the 
Mint  and  sir  John  Falconer  raaister  daiied  the 
iwentie  right  ol'  iVIanh  Irn.  vi  c.  seaventy  sea- 
veD  ll^m  ftiie  caiicelled  ticket  granted  he  sir 
John  FjuMiiuT  tn  tlie  s'd  Charles!  Maitlaod 
(therin  drRisrn*^!  lord  thcsVdepul)  dmted  the 
tbird  dny  of  A{>rill  Im.  tic.  sireutie&iven  years 
ibr  imvtiieat  of  six  hundrcth  pound  sterling 
viz.  t^ie  one  halie  at  Lambas  and  the  other  half 
at  CandUmiss  therafler  coniaiuing  sir  John 
Falconer's  oath  one  the  hack  tberot  taken  befor 
the  commissioner!*  tor  examining  the  mint 
Item  tMro  unxubacryved  occorapts  of  debitor  and 
creilitour  betwixt  the  getienills  and  minster  of 
Ibe  iVIintthe  one  daited  the  first  day  of  January 
lia,  vie.  atiemie  nyn  and  the  other  the  fir«it  day 
«f  Auguat  Im.  vi<v  srventie  nyn  years  item 
aie  oaoeelied  band  ir  ran  ted  bo  sir  Jo  tin  Fal- 
coner to  i'ii  ?"-!'-  ^JaiUaoil  of  Haltone  liaittnl  the 
fourth  «  Im.  vi  r.  j^ivenue  n\  n  for  the 

fouuie  <  :  .  ^our  tlwusmid  itiarkM  of  prin- 
cipal! pnyabie  hr  followes  viz.  fourteen  thou- 
•and  iMArki  at  Caudlmis  tm*  vi  c«  fitvcnty  nyu 

SHecfi  thousand  itierks  at  W  hitaunday  Iher- 
er  and  other  fyfteifffl  thuusiand  flterks  at 
lianih<ii  4h«failer  with  a  thousand  p^tuids  lor 
«ftoli  tenii^  UlilsBi^  and  a'rent  after  ihe  rex^v« 
termes  «:r  iitiierol'.     To  which  baud  air 

Williaii  id  David  lV);iiiland  orcaub- 

acryvein^  tvunr^ses  Item  ane  accnunt  of 
eofipiT  coyu  jittoed  9ii*i  abbrcvialeil  rrtim  tht- 
ffiix  ive  hooks  of  huyiug  and  working  till  the 
Irvt  ol' Jafiuary  Im.  vtc.  seaventy  uynMuixt 

ik«  l«fd  UMhuaa  and  air  J«.hn  Fair-  ■ ttb- 

•or^fcd  IliM  aiMoibrr  uniiub«.r,  nut 

]  (jTom  tht  .^,,    *  Ja* 


count  of  bullrone  containing  thecom|i 
of  hnUiouearrysing  both  u^ion  the  ex 
imtiort  of  the  kiogdome  of  Scotlaud  al 
git  her  with  a  psM'ticulJar  account  of  the  pi 
and  parts  and  collectors  accounts  tUei 
tilted  ai^i  uplirted    Aud  alse  hulliane  ^^1 
arry  <k'  from  them  what  they  have  pay eil  and 
i&  yet  rpfiting  both  in  iheVvme  of  I  lie  aeruenSH  i 
tacksi  tic  n  anil  general  I  ctd  Wrtorv  i  .  ^  fittl 

of  NoreniWr  Im.  vie.  slxtiecnt  iMtef 

September  Im,  vi  c.  atreutie  three  wiUi  the 
counts  of  diihcharge  therof  fitted  and  suUscry  v^ 
be  John   duke    of  Lau»lerdab   hus  tiioj«^i 
eommie»io(H<r  lor   the    tvme    John    dulu: 
liothes  tonl  high  chanoellor  aod  Wilhata 
of  Dundonald  couuai«siouerH  of  his  mi  ' 
the«'rie     Item  ane  book  of  accounts  an( 
bulhone  containitig  charge  and  discharge 
January  Im,  vi  c.   scvrnty  tour  to  Nov< 
Im.  vi  c.seviuty  fyvc  Iti^iu  aoe other  book 

r.iMnU     infant  tbeGullio'   '^  />.,.t   »,ri,n-r  r  " 

I  um  the  lit 
'  ^t^fu  to  Au^     .  ...... 

lic^u  tun  abri'viats  of  the  biiUiOine  ai 
from  NovembtT  Im.  vi  c.  sixtie  ane  to  N^ 
her   lm»   vie,    eighlie  ane  years     Item 
meltiug  rcge)»ter  begitmingthe  letitii  nf 
nuary  Im.  vi  c.  siveuty  three  years  a; 
the  luurt  of  Oeceml*er  Jm.  vie.  Rtv- 
Item  ane  ju ma II  book  of  silver  ^ 
ning  (he  twoniie  ftixi  of  March 


new  meitif^  jru 
of  February  Jiu. 


md  Qtherijor  OfflHal  Malver§aHon§^ 


I  cndiiig  tlie  Itrente  ^ay  of  October  Ini.  vie. 
'  I  fttie  yeM%,  }|rtii  aue  ntdtitig  book  be- 
nog  the  twentiu  sixt  of  Anrill  Im.  vie. 
btie  I  wo  jenn  and  eoding  the  lUird  day  oJ 
|tisl  Jni*  tic.  dghtietwo  years  Item  me 
ount  of  copper  r»r9cc4*dinu:  the  twenty  ti&;t 
>e«3embt^  Im.  %ic.  sixtie  three  Item  ac- 
i  tlicrof  from  tlie  tweutie  mghl  of  the  s'd 
Oi0eiQber  to  the  ci|^bi«n  of  Apnll  y 'after 
acoottot  ot'  the  sante  from  theoce 
I  of  Au^pifft  ibcraftcr  Item  an- 
copper  frora  thenee  to  the.  twentie  of 
oljtf  tiierdter  Item  account  of  the  same 
I  iheoce  tiU  the  ivrentie  ane  of  December 
tlierafter  Item  ane  account  theroffi'oni  thence 
to  tbiL'  fvfiopn  of  March  y 'after  Item  ane  ac- 
eoi  I  1 1  ood  thence  to  the  first  of  October 

^kv  in  ane  account  theroftroTii  iheoce 

^Bptto  Hni  of  Janimry  y'efter  Item  ane  &c- 
P^pnt  therof froiii  ihrttcetn  thi-'fyfteeti ol  Apnll 
>  llieriiflir  Item  atrtuiunt  therof  trom  tbLmce  to 
the  iii'Rt  of  Aprile  y*efter  l»era  ane  account 
theniffrom  thence  to  the  four tccij  of  Novem- 
ber thrreiW  hem  one  account  Iherof  frt>m 
Ihenoa to  the  twtoue  thml  of  Apriii  thcralt^^r 
Item  aoe  account  iherof  from  thmce  to  the 
twenlie  of  June  therafter  Itcio  ane  account 
theruf  from  thence  till  ttie  thertoen  of  i^*pt<?ra- 
ber  thcratUr  Item  ane  account  tb^^rot  from 
llmoci  lUl  llie  fifvt  of  Doc^mber  y'etler  I  teen 
I  Maaoaottal  tken>f  from  thence  tUitlie  fyfte«ti 
of  January  thcral^er  Item  ane  ac^^ount  therof 
frooi  thtHioe  till  the  fir^t  of  March  therafter 
l4«n  ane  aocount  therof  from  tlience  till  the 
first  of  May  therafter  Item  ane  account  from 
tbencetill  the  tii-stof  June  y'efter  Item  ane 
account  tbei  of  from  thence  till  the  first  of  June 
theratter  Item  accuuut  therof  from  thence 
tiU  the  i'lrtt  of  JuUy  tberaller  Item  account 
thenif  fnim  thence 'till  the  siferiteeo  of  Jully 
im.  rte.  M%%y  et^ht  years  Item  a  cancelied 
^<>T.*^,...  k.  t.. ,.  ♦  u,^r  jofin  Falconer  liaiUie  John 
H  talbretfa  dailed  laal  of  March 

Ijii.  set'io    item    ane    canoeMed 

«ooi  11 1  It  I  ihe  said  sir  Jaho  and  John 

Cotii^  |.rr,,  -r  ,ji  MontroB  and  James  Mures 
datefi  the  iwentie  eight  of  January  Im.  tI  c« 
•aaTtnty  nyne  Item  ane  other  cancelled  con- 
tra43t  betiPviVt  the    said  air    John   and  Darid 

I^'-iiitdaitidtba  ^y^' 

vie.  niventie  cjf lit  all  anent  '  '     va 

ae4V)4int  of  depursment*  iti  of 

new   uitll  arvil  lbr;<iti(;  the  M 
lourtewtih   of  Jolly   tm.  vic 
n  ane  IkniIc  coaceniin^  the  Mnn  nt^i^MiuPi^ 
ttnt  ef  March  im.  li  c.  siveaty  sii^  Itevo 
other  book  cm"   •- 
tent  of  Nov  I 
n  ttiie  other  in?./..  . 
miHg    m    Jmmary    i* 
TlMi  ane  <ilh<tr  book    i 
^^iMUg  in   D<M?embcr   lin 
lliin  ane  other  book  concert 

nki^  ill  K«4iruary  Im.  ti«;.  aivuity  nyne 
unv  ac^iunt  of  oop|K!r  bo uglit  from  and 
tl*a  Arst   of  Jaauary   Ini.  vie*  mtmdkt 
,  $tgst  aadkg  ta  i^i^atDbar  .ihf  raHar   llrm  ane 


lie  Miot  be^hiBing 

▼i  c.  scvuity  six 

'iiLj  flir»   >linV  ba- 

y   ei^t 

ty  dffht 
afiieba« 


accHint  of  the  cuynzie  bouse  majde  be  John  ] 
Fak'oncr    master  tlierof  betwixt   the  first  of  1 
June*  Im*  ri  c.  threcie  nyne  and  the  ttiird  of] 
Aprill   )m.  vi  c.  fourtie  ane  Item  ane  printing 4 
hook  of  the  Mint  beginnitipf  the  last  day  ti#1 
Jully   im.  vi  c,  sixti«s    lhpe«    and  ending-  in  ( 
Julty  Im.  ri  c.  iiixtie  ei^ht  Item  sue  account  of  | 
th(^   counxiehonse  made    be    George    Foultf  f 
master  coynzitr  be|^inning  the  first  of  Juti^sl 
im.  vie*    and  e leaven    and    endinyf  the  ilr^f 
of  May  Im.  vie.  aiul  ihertecn   llera  ane  1 
anent  ihe  gold  and  silver  of  the  Mint  frae  tht  | 
ftret  of  February  Im.  vie  fyil'M?n  years  to  tUm  \ 
first  of  Jully  Im.  vie.  and  sixteen 'years   Item 
ane  other  book  therof  from  the  t^ventie  hiventb 
of  March  im.  vicei^hteenlotlie  first  of  Miucb 
Im.  vie.  and  twentie  years  hem  ane   others 
book  concerning  the  same  fr*>m  the  twentie  of] 
March  Im.  vir«  sud  twentieiwo  years  till  th«  * 
twentie  t^vo  of  March  Im.  vie*  and  twnntie  four  ^ 
Item    one    other  book   coucemini;  the  samt  i 
fVom  theei^htof  Aprill  Im.  %ie.  l*venty  fbuf  ' 
till  the  nyiit  of  May  Im.  vi  o.   siventie  Mvea 
(tern  ane  other  eonceming  the  same  from  th#  J 
first  of  H*fpttn>ber  Im.  vie.  and  ten   till  th« 
tenth  of  February  Im.  vi  c,  and  eleaven    Item  j 
ane  other  concerning^  the  snrae  from  August  i 
Im.  vie.  ihretre  four  till  November  Im.  via 
thfetie  four    Item    ano  other  ooncemtng  tb«l 
some  from  Jully  twentie  siveo  to  Ucoembtst  1 
Im.  ?i  c.  and  thrttie  four  years  Item  the  depo« 
sitiones  of  ArchbaUl  Falconer  counter  wairden^ 
AlexHndcr  Mailland  ane  of  the  wairdens  Davij 
Maitland  deput  to  the  lord  Halton  in  the  Mint  I 
Mr.  Henry  Ahvinessey  master^  John  Falcouei 
laite  wairdeo  air  John  Falconer  Jame^  Farnuaf 
sen  iter  to  the  lord  Ilaltooe  Adam  Foulis  dark 
of  the  bullione  Hugh   Steviastoo  tvritfer   Mr* 
James  Falconer  eldest  laufii  11  son  to  the  deceisi 
John    Fatrooer    late    wair'  ^    yi     --     fn^dp 
smith   in  the   Mtot  Pstri'  or  t» 

sir  John  Falconer  Thoiniis  ;u.,,,->  nuilt^r  in 
the  Mint  Walter  RlitcheU  cutter  in  the  Mini 
Thomas  Ash  only  melter  in  the  I^titit  Thomaa 
Aislie  one  of  Ihe  eertantsof  tliemdriug  house 
taken  bet  or  the  connmieaionerH  apfKunti^d  by  big 
majestie  ibr  examining  of  the  litate  of  the  Mint 
Thertifterthe  said  sir  George  M'kenzie  his  ma« 
jesties  adi^ooat  and  tir  Pntrirk  Home  advocat 
for  lii^  hi^hnc*R  inlere*t  dodaired  they  re{)eated 
the  compts  eompt  books  bonds  ticket^:  recq»tf 
and  other  writts  above  montiooed  and  deposl* 
rsijHses  aAiave  iiamcHl  taken  be- 
'jnern 

i>i    iuf   I  fjMirs  f»f   the 

proveing  the  articles  of  the  lyb<*ll  abofe 
written  found  relevr^ti*  "»•■'  «  "-v^ts-d  to  ther 
probfttioiie  And  for  »,r  the  lorda 

as  to  the  f<*rs*d  six  1 .  .  ,  .atl  sterlmi^ 

E'veii  as  a  bud  or  brjb  to  the  tmid  ^arle  of 
luderdale  by  the  sM  sir  John  Fslcooet 
to  \:^  his  accottats  allowed  by  the  lords  Oilf  tha  > 
theVite  and  eibohequer  and  pav<D<?nt  of  his  yni* 
iifst  ballaace  Iroin  \m  mfj^vtie  crdved  tbatflr> 
WdliacB  Sharp  ef  Hi,<>niehill  laie  cash  keeper 
who  4vaa  prcaent  at  the  coiooaing  betwixt  tb« 
aark  atid  air  John  and  a  subafiry  ving  vtiluei  ia* 


>  appoiaAed  for  exsrntoiiig 
Mint  now   prod u ceil  tor 


ti>e  ticket  g^rante*!  by  sir  JoUn  mi^bt  be  exa- 
tnineJ  therHneat  Whicb  desire  oi  his  nm'iiest 
mdvi^oiil  bdnt,^  consideretl  be  tlie  sMs  lurds  ihej 
ordauiied  air  William  Sharp  to.  be  exiimiDed 
i4(M>n  the  potnis  above  riientionecl  and  alse  tbe 
b&iil  p«raoni«  above  named  i^rho  formerly  bad 
detioiied  U»  be  re- exam ioed  in  presence  of  llie 
i^u  lonia  upou  tbe  pouits  ^vberupon  tbey 
formerly  deponed  and  granted  warrand  lo 
citt  tiieiii  all  to  tiiai  effect  And  accord* 
ingly  the  sM  sir  WiUiara  Sharp  and  baill 
persooes  abovenuraed  who  formerly  deponed 
|>em^  uU  law'ilie  snmoiid  and  the  b'^s'*' ^Vil- 
bum  Sharp  btiii^  pei'soually  presL-nt  soieiiinly 
r»orn  and  exQiuiiied  u\Hm  ihe  points  above 
iirilten  deponed  ami  declairc'd  as  hisj  oath  and 
dejKMiitioae  stibscry  veil  *vttb  bis  hand  extant  in 
pruces  bi'iii'S  Aud  aUe  the  said  Arcbbald 
Falconer  and  Alex'r  and  David  Maidands  Mr. 
Henry  Alcorn  sir  John  Falconer  James  Fi*r- 
qnor  3li*  James  Falconer  Henry  Lucar  Patrick 
Oj»:dvie  Tbotnas  3Iurray  Walter  Mitchell  and 
Thomaii  Asb  being:  all  personally  present  so- 
leninly  sworn  and  examined  iJk  ane  aiWr  ane 
©iher  ui>on  what  ihey  bade  been  formerly  in* 
teiTOgat  and  deponed  befor  the  s'ds  coiunii^* 
iiotiers  af^pointed  ibr  examinalione  of  tbe  slate 
pf  tlie  iViint  Tbey  adhered  ail  of  them  to  tber 
fonner  defiositioncs  and  depon^  and  declared 
fts  iher  hWs  oaths  and  dqiositiones  extant  in 
proces  beai*s  Ther.iiter  tbe  s*d  actione  and 
cause  b^rin^  againe  called  in  presence  of  tbe 
i'ds  lords  and  the  s*ds  Charles  earle  of  Lan- 
derdule  Richard  lonl  Alaitland  sir  John  Mr. 
James  and  ArchbakI  Falconers  defenders  ther 
pro'm  abovenumed  rex^ive  being  oil  tymes 
«»Jkd  requiixid  and  wr]^  by  ane  macer  at  tbe 
-k«|  M  vse  is  to  exhibit  and  produce  in  pre- 
gHotlkf  tbe  s'ds  lorda  all  tbe  writt^  and  proba- 
tione  they  bad  for  proveing  tbe  points  of  the 
act  above  written  admitted  to  tbe  proUatione 
and  allowed  to  be  proven  and  instvncted  by 
tliera  in  mainer  above  specLftcd  and  to  salisfie 
the  points  of  tbe  K'd  act  as  to  ther  pairts 
And  lykwayes  Ihe  sM  Mr.  James  Falconer 
for  btmselfe  and  as  pro'r  for  Aircbbald  Falconer 
being  oft  tymes  called  i-eqnired  and  wi-gtd  to 
produce  the  dispositione  alledged  upon  granted 
by  bis  tftther  to  him  witlx  tbe  sM  Archbald 
J^alconer  bis  gift  and  lo  satisfietbe  other  points 
of  ihc  s*d  act  They  and  ilk  ane  of  them  iail- 
xted  and  sucoumed  in  doeinj^  tberof  aj»  was 
Weill  known  lo  tbe  s'ds  lords  and  therfi>r  tiiev 
circumdnccd  tbe  terme  against  all  of  tlie  a*d8 
defenders  Tberetkr  llie  s'ds  lords  baveing  all 
at  leoih  read  licard  seen  and  considered  tbe 
tbrsM  lybellcHl  summonds  and  points  and  arti- 
cle* tb«froff«nmd  relevatit  and  admiUed  to  bis 
jp,  '  ;      '    *    ne   compts    compl 

\^^,,  IS  bftnds  tickets  re- 

^^.,  n«'  T^roduced    and 

,1^1  i  named  pro- 

,^,,  r  iiinkveing  of 

l|],  >iimonds 

•  ti     And 

ll,  .    uith  the  whtts 

all  :i- the dd'crs  Weill 


^^^H 


t 


wg00gSmn 

and  ry  ply  adf  ised  The  a'ds  lord^  fland  tt  proven  J 
that  Charles  cairle  of  I^auderdale  juit;  of  the 
generalls  of  tbe  Mint  did  take  up  tbe  acccmipu 
of  tbe  LO[»per  jurnay*  from  the  wairdeni*  and 
that  tbey  war  destroyed  and  that  tlicr  bein^ 
a  stop  put  to  the  coynadge  of  tli< 
year  1  m.  vi  c.  siventic  nyn  tbe  it  i  ■ 
uy  tbe  counsrll  fiir  tbe  second  juiu 
exceeded  that  by  bis  ordor  and  wj«r 
officers  of  the  Mint  proceeded  ui  th^ 
of  more  copper  then  was  allowed  by 
rands      And  that  be  got  the  graitest  Kham    ui 
the  profits  of  the  copper  coyoa  and  that  thcr 
was  tlnee  tbou«»nd  nyn  hundretb  ti>  f '^'    "^^ 
stone  coy ncd  alter  Ihe  act  of  the  in 
and  that  he  did  not  imptoy  the  st«>ok  . 
tliousand  marks  ap| pointed  by  thi 
ing  of  bullioiie  AH)eit  the  earl  a    .         ^  i 
receavcd  payfuent  and  allowance  of  the  a'ntut 
of  Ibe  sM  Block  of  bullioneas  iKit  bad  been  iai*_ 
pktyed  and  that  be  was  a  sharer  of  the 
mcdes  of  tbe  silver  coyne  and  that  the  dean  < 
Guilds  weights  ware  made  use  of  in  the  Miall 
for  receaving  of  tbe  ballione     And  that 
mony  was  troned  by  tbe  fraction    i' 
weights  and  that  when  the  \m 
justed  to  tbe  Scots  pyle  afte*'  the  hcins  sia 
weight  was  intimalto  tlie  officers  of  the  J 
the  earle  caused   debver  u:     ' 
wairdens  and  to  sett  by  th 
and  caused  sett  a  new  sett  ul  ^.  v  .^  .ii.>  .-,,jk.^.v.,  14  , 
tbe  dean  of  Guilds  weights  couforin  io  whtcli  1 
tbey  did  then  work  till  the  end   <»f  Jatitmnr  1 
Im.  vie.  eightictwo  years  And  that  hi^  1 

to  cause  essey  the  chisel  I  beads  swcps  .i 
and  to  see  that  tlie  mony  csscyed  and  covtiji.l 
ed  was  of  just  weight  and  fyniie^     And  albei^l 
be  did  know  the  counterwairden  did  not  atll 
his  oiSce  yet  be  did  not  cbalcoge  him  for  it  i 
neglectecf  to  hold  compt  and  to  pmiish   the 
ficers  of  the  Mint  for  tbe  ne{>lett  and  malve 
sationes  in  ther  office  which  the  tm^ 
nerall  of  the  Mint  was  impowred  to  tJ 
comissione  and  Hbiid  as  to  the  lord  .uamnTii 
conjunct    generall  with  bis  father  that  be  4 
clame  given  in  to  sir  John  Falconer  he  re(]uir< 
ed  fi^m  sir  John  tbe  master  a  i^haire  of  IlK 
probts  of  tbe  twelve  sbilling  tiT>oii  tlu^  ^titcc^i 
bullione  and  of  the  profits  of  tl^ 
tbe  weights  and  of  the  profits  ot  1 
money    And  that  albeit  bis  majesbe  graiiM 
warrand  to  the  maistcr  of  the  Mint  at  the  Ta 
of  Londoue  to  delifer  a  pyll  of  weight  to  tli^ 
lord  Maitland  as  ane  of  the  general  :«t  of  ; ' 
Mint  of  Scotland  to  be  caned  to  Scotland  1 
warand  was  daited  in  August  inu  vi  c  si^ 
fyife     And  accordingly  the  lord^i^laillaij 
receave  and  brnig  down  the  p>  II  ot'  wci^' 
be  made  u*(e  ol  in  the  Mint  of  Scotland 
notwithstanding  it  was  keepcd  up  and   aevf 
intiniQl  to  the  otiicers  of  the  ^1' 
wse  of  till  February  ini,  vi  t  \t 

And  when  the  weights  formeii.   1       .  ui«  i 
ware  reduced  to  the  Scots    pyll   tbey   lieinff 
again  changed  tbe  oHicers  ot   Uie   Mint  dii 
make  use  of  the  dean  of  Guilds  weigltti)  cmb* 
forme  to  whicb  tbey  wrought  till  ibe  4Ui4 


aa^K 


4&^^^ 


and  otheri.fnT'OfficM  Matvertaii&nt. 


A*D,  iSse. 


im. 


i 


th(. 

ilia  the 

Ilowui 

my  WHS  Koynctl  m; 
D«l  the  monv  nlir 

low  i' 


red  fjy  lii'V   ^\:j]*,;;ni! 

Actiner  tluT  o\d  v 
ftftis  f)f  I  lie  If 

Urtk-ii^  ni"* 

t  aiitl  iivA. 


two  yrtiT^  ftrifl  that 

,,dto 
■  hicU  lie 
ic  Ami 
Tcr  late 
(>l»ertht? 

•la 


ami  th^i  he 

i  the  remedieB 

(iMi  (jinteanil  that 

en     And  the  lonl% 

.  that  tlipy  went  one  in 

r  allcr  <!ie  (juniititie  al- 


.a 


1  ^Ot  a 

iy  John 

luff  r   of  ihe 

ita*l  that  the 

,  ^  i'  the  remc- 


llir 


h]    ill. 


sheer  tlicm  tioim  ami  to  brini^^  them  to  the 
die  niut  so  ubvnyr?  inuif  il  the  ]»eic«iin- 
kIv  npoi»  •  -  to  the 

k*hMtt  ihr  !  reoync 

lords  (lu.iJ  lh4.L  ihiii:  \mx.»  sivrtifceii 
sloiie  of   co|iJier   coyiied   the   lir«t 


f  jumiiy  hcginninj;'  i 
hu    Im.   vie,  sialic  sine 
!  firtit  day  of  Aufijujit  im. 
And    that    ihrr    was    fourkcn 


fUy  of 


li,. 


•433  twelve  thou- 


id  I'. 

^yo«d  the  vecaod  ct)f»|i(fT 

>  first  day  of  INUy    lin. 
E  and  4;ndine^  thctrui  day  of  t'eb.  Im,  vic» 

title  years  atid   thnt  thtT  wa»   iiyn    thnu- 
kl  fyur  himrh*  MireeHloiiif  coy»ied 

>  jwTOod  copjH  I  i  jf  ri<ii' wa«  Hllowcd 
|t  the  warrands^  mLchi^  iher  wiik  tliref»  ihoii- 

1  nyn  liundrt*th  nvntie  nvn  stone  otirnoimrl 

>iiu  limt 
Ctrl  of 

...r      .1... 


and  fonr  pound  and  for  the  three  thonsand  DyKl 

hiindretb  nyntie  nyn  stone  coyned  aiuce  tj»«j 
»c»  of  Htdernnitte  \i  thretie  two  shiUing  th«;| 
'  !uas9  and  hody  of  the  coppej*  not  I 

]  atnoutils  to  th^t  flotiiite  of  aiie  hoi] 

drt  II  iinij  two  t'l  '    '        iMiudrcth  nyn(i#J 

eight  iKtund  c'l  is  luony     AnM 

as  to  the  seconii  sinn  le  yiu m  til*?  ttvrlf'ethilUnf  1 

upon  the  ounce  of  hidhonc  niid  eight  uKiolttf 

.n/.ni  the  profit*  nrrysing' to  the  kinjj  hy 

ne  plven  in  to  the  officers  of  the  Min 

!tn<i  not  coyned     The  lords  remilts  these 

the  lord  thcsV  the  otHcers  of  th^l 

1,'  regullarly  and  in  course  ly able  till 

coujpt  to  the  lord  thesanrer  for  the  same 

as  i%t  the  third  article  anent  thr-  prf>ftt  of  tin 


d  hf\ 

.ithiit] 


pn  ilie  pound  whu'li  ior  'i  thon- 

tid  f^toDe  coynrd  mor^>  thi  ued  by 

UHfrandn  thu    firpt    cojjptr   jiirnay  will 

fcfiitn*    ff»  thf  *<»*wrnr  nf  f^ro  hnnfJrHfi  n.nd 

ue 

^'iicil  m»iT  then  [^  alJtu^  cd  by  tiic  wiutiumIh 
?  second  chopper  jumav  befor  the  act  of  in- 
*  SHl  that  natne  nuta  nill  nnionnl  to  the 
if  d]^hiy  st¥cm  thousnnd  nvn  hundr^ih 


stock  of  iwenlie  thousand  mar! 
the  UirT  lor  buying-  of  bullion  \ 
t  11  and  master  of  t)ie  iMiat  did  uc 

lid  allowance  of  the  soume  of  twelve 
initi'iH  til   inni'ks  as  the  a*rent  of    the  fa 
twenljc  thousand  marks  yearly  albi^itthestockJ 
was  uot  ioiployed  for  buying  uf  bullion  tis  wakl 
appointed  by  ihe  Vtag  and  therfor  ffand  lh« 
Iftite   generall  and  master  are  h  -^i  '■'        ■  .f/i  /i|^ 
iottdum  vise*  the  carle  of  Laud  jfe- 

Jieratl    froai    tbi'    Vijulm    vir  .  ibat 

'•'^tC  ioiutti      ■  .    ^  ,11*  \.')l!i!-    Ill    v\\\'    nr- 

dmury  anuall  of  the  sani  a' rent  iwtmnc  tianiui\ 
fr(»ni  the  ye*ir  \m.  vi  c,  sivtie  two  to  the  year  " 
liij.  TIC,  ti^bue  lhri;e  hem;^  twentie  ycari  j 
which  cxtf  ud^i  in  all  to  tlie  st>uine  of  twentie.n 
iyrv  thou:>4aid  and  six*  hundreth  nouud  Scol*ft 
niuny  Ami  cir  John  Falconer  fuite  nmftI^r  I 
from  the  tyme  of  his  entrie  to  the  said  uftic«  \ 
Avhich  was  the  firstof  Januarv  Im,  %ic.  ^e* 
•     '       "    -'      '      "       tidn 

-^-«  ■-' a  >io..,.-.  .  ,,...,,.,.., (he 

printing  hook^  that    tlie  officers  of  thrMint* 
Inn  1 1  February   Im.   vie.  siventiefour  to  Au- 
Jin.    vie,   ciifhlie  two    hare    alwayci 
^      >1  Ivelow  the  standert  some  iit  ten  denir^ 
tivititic  twii  g^raiti^  »oiiie  lyniea  at  ten  denir  , 
Jtrcnlie  three  jnrrains  which  bein^  all  exactly 
calculat  at  the  rexUve  finnea  upon  the  bullions 
cnyned  within  ihut  tytne  amounts  to  the  t^tnimo 
of  nvn  tbouwtod  lyve  hundreth   ihre'iij  two 
pound  four  pennies  niony  forsnid     Ami  as  la 
the  ^bfiharticU*  anentihe  1^  tjout  * 

e<bfv  ffanrl  it  proven  that  A\* 

heads  sweeps  aod  Hciaps^  w-.hv  mrum  :uhm<t 
Iher  was  no  cssey  taken  and  tfnnd  bo  the  mi  It- 

''""  * L-   •' '    :...,..,,;..  ,,t    itifj  chisell  heads 

1   and  coyned  front 

:        1.^.      ,        ,     .,    ,  .    Ini.   %i  e,  sivcnlie 

three  to  the  first  day  of  DeeeniWr   Im.  /ic, 

etMiitit^  t\v<i  (the  former  meltinff'  books  being' 

« iterids  to  four  hundreth  si^iii*  uyu 

N  ii  pound  IhiTteen  ounc  e**  Aod  ffand 

thai  thiT  ^va«  a  hundreth  and  cij^htietwo  stone 

two  wuces  Tipd  limr  drop*  coyne4  snicc  the 

act  of  iitdetutMlv  and   that  the  value  of  tlie 

stone   v'ot    is  efeven    hundreth  eig'lttie    four 

nsarks  %\\  slulliii;^  rip;hl  prnnirs  which  for  the 

firf^Uid  himdrtth  e};^htic  tvtru  i^toac  two  ouncofl 

*      it 


S4S] 


34CHAltLBS  11.  ihwoMiimgi9gaintiaeEm1^LmamUk,i^e.l9tA 


undl  fbur  drops  coined  since  tlie  act  of  inden* 
oitie  amounts  to  tbc  soume  of  ane  liinidFHli 
Iburtie  three  thonsand  siveu  liimdreth  twentie 
-fliz  pound  mony  fbrsaid  And  as  to  the  sixt  ar- 
ticle anent  the  'difference  of  the  weights  from 
the  Si*ut8  pyll  iimd  it  proven  that  the  officers 
of  the  Mint  did  make  use  of  the  dean  of  Galds 
"vi-eigphts  in  rcceaveing  of  the  bulUone  and  that 
they  troiie<l  the  i>eaces  by  the  fractious  of  the 
kiocfs  weights  and  ffand  it  proven  that  the  dean 
4if  Guilds  weights  are  heavier  then  the  Scots 
fiyle  two  unces  and  eight  drop  upon  the  stone 
which  after  deductione  of  what  waa  coyued 
•f  dollars  and  doucat  donns  these  not  being  al- 
lowed for  hullione  that  the  difference  ot  the 
weights  from  the  first  day  of  September  Im. 
▼i  c.  siventic  three  till  the  first  day  of  Septem- 
ber Im.  vi  c.  eightie  two  amounts  to  the 
■oume  of  fyve  thousand  three  hundreth  eightie 
«iz  pound  mony  fursaid  And  as  to  the  siveuth 
article  anent theescaltatione  mony  ffand  it  proven 
J»y  the  printing  books  that  the  qnantitie  of  but- , 
Jkine  payed  in  upon  the  kin^  aooompt  and 
Qoyned  since  the  daite  of  the  oounsills  pro- 
clomatione  in  March  Im.  vi  c.  eightie  ane 
was  threa  hundred  and  therteen  stons  six 
pounds  six  unces  tyfteen  drop  which  at  eleven 
pundreth  eighty  four  marks  six  shilling  eight 
pennies  the  stone  t}ie  exaltatioue  being  fyve  per 
cent  extends  to  twelve  thousand  three  hundreth 
vixtie  eight  pound  therteen  shilling  four  pen- 
nies And  haveing  ordained  sir  John  Falconer 
and  Archbald  Falconers  to  depon  anent  the 
f]uantitie  of  the  buUioneand  coyned  mony  that 
was  lying  by  them  the  tyme  ot  the  exaltatioue 
and  accordingly  sir  John  Falconer  and  Arch- 
bald  Falconer  having  deponed  ffund  that  thcr 
was  thretie  one  stone  one  ]x:und  therteen 
iioces  four  denires  of  bulUone  and  current 
mony  lying  by  them  the  tyme  of  the  exalta'ne 
which  at  the  forsaid  ruite  of  eleven  hundreth 
and  eightie  four  marks  six  hhilling  eight  pen- 
nies u|>on  the  stone  extends  to  twelve  hundreth 
twentie  eight  |K>unds  tlicrteen  shilling  four  pen- 
nies Scots  mony  And  as  to  the  nynt  article 
anent  the  melting  doun  of  the  dollers  and 
doucat  douns  ffand  be  the  melting  books  from 
the  siventh  day  of  January  Im.  vi  c.  seavinty 
three  to  the  first  day  ot  January  Im.  vi  c. 
eightie  two  that  thcr  was  two  hundred  eightieaue 
atone  twelve  pounds  fy  tteen  ounces  ten  drop  of 
dollors  and  doucat  douns  melted  doun  the  tyme 
ibrsaid  which  not  being  allowed  as  hullione  at 
twelve  shilhng  upon  the  ounce  amounts  to  the 
Boume  of  fuurtie  three  thousand  two  hundreth 
eighiie  six  pound  Diooy  iurs'd  And  as  to  the  tent 


article  anent  the  earie  of  Lauderdaldi  neeaF- 
rog  double  payment  of  four  tbonsand  and  ava 
hundreth  pound  tor  three  vean  saHarie  lybdM 
fiand  thesamen  proven  be  the  earlei  recept 
to  tiie  kvd  BaUanden  upon  his  miyesftieB  fni^ 
cept  hi  the  year  lm»  vi  c.  sixte  fiwr  and  tha 
fourth  articlo  of  sir  John  Falconers  ooBDjpt  df 
bnllione  fitted  be  the  commissioners   or  tba 


thes*rie  in  the  year  Im.  vi  c.  siventy  four  an4 


commissioneri 

ty  four  an4 
therfor  fland  h'im  lyable  to  refoond  the  Hid 
soume  and  tlie  value  of  the  ordinar  a'rcm 
therof  flomiN^  c/fimnifrora  the  tyme  of  the  kft 
payrqent  made  by  sir  John  Falconer  which  wis 
at  Martimass  Im.  vi  c.  aevinty  two  which  ia 
haill  extends  to  the  soume  of  sivea  thooaaad 
nyn  htmdreth  twentie  ane  pounds  ten  rinlliiy 
Scots  And  as  to  the  eleventh  article  anent  tfaa 
band  of  six  hundred  pounds  granted  be  sr 
John  Falconer  to  the  earie  to  ^  his  cooali 
allowed  The  lords  in  reaard  of  the  retired 
ticket  produced  the  mutual!  discharge  betwiit 
tlie  carle  and  sir  John  daited  tlie  twentie  eight 
of  March  im.  vi  c.  siventie  siven  the  cnnatt 
account  betwixt  them  and  the  other  prphatieaii 
adduced  as  to  that  article  finds  that  the  fofaiid 
band  of  six  hundred  pounds  sterling'  is  pt^ 
suraed  to  have  been  given  for  the  said  caaaa 
and  so  is  the  kings  mony  And  therfer  decemnl 
the  earle  to  refound  the  same  with  the  value  flf 
the  ordinary  a'rent  y*of  nomine  dmmni  fnm  tin 
first  of  January  Im.  vi  c.  siventy  njme  to  thi 
first  ot  January  Im.  vi  c.  eightie  three  cstn^ 
ing  in  all  to  the  soome  of  eight  thousand  ava 
hundreth  and  twentie  eight  pounds  SootniuiM 
betbr  extracting  the  decrcit  the  earie  can  om^ 
descend  and  instruct  tiutf  the  fors'd  ticket  na 
granted  tor  ane  wy'  cause  then  that  oanda- 
scondeil  one  in  the  ly  bell  And  as  to  the  twdft 
article  ttand  it  proven  that  the  offioera  irf*  tin 
Mint  wTOught  industriously  upon  the  reaaediii 
of  weight  and  ffand  these  reniedies  at  a  -ffdl 
in  the  mark  peice  of  mony  coyned  ainca  thi 
first  day  of  September  1  m.  Vi  c.  eightie  two  dM 
amount  to  six  thousand  six  hundred  pouaA 
mony  tbrs'd  In  respect  wherof  awl  that  atmr 
befor  the  extracting  therof  the  s'd  earia  ef 
Lauderdale  did  not  condescend  nor  instruct  tiMK 
the  tbrs'd  ticket  of  six  hundred  pound  i 
was  granted  for  ane  other  cause  then  thi 
descended  and  in  the  lybell  The  m 
^ave  and  pronounced  tlicr  decreet  and  i 

in  the  s'd  matter  decerning  ordaining  a       

and  declainng  in  mancr  above  writtea  and  m^ 

duins  letters  of  homing  one  f^'tleen  dayeaiMl 

necessar  to  be  direct  heimpon  dec.  Jta^ 

tractum,  6gc  Da.  itecBOL 


9i5i]         Ih-ocMfirngM^gtimsi  ifeXoitirJktAtrr  Afoi.         A,  Di  iSSI. 


[31« 


330.  Proceedings  against  Several  Pirsdks  of  Lai^ebkrhire,  foi 
Treason:  33  Charles  IL   a.b.  16^1*    [Now  first  printeil 
frooi  the  Records  of  Justiciary  at  Edinburgh.] 


li*  JusTTciJiaiJCt  8.  D.  N.  Reips  te»U  ta 
l^etono  Biirgi  de  £diQl»irfh  decimo 
quurto  die  meniiis  Marti i,  1681,  per  bono- 
rubibs  viros  WtiieknuA  Comiteni  de 
Qudnibenj,  Jmg^9nmm  Geoeraloro, 
Mileliiiiitni  MaitlMd  dft  Duddop  Jus- 
ticiarie  Clef  team,  JUeiimi  Ilominutn  dc 
Nairne,  Duininos  JfteotMiiD  Foutis  de 
JDaftdem  BttMiMir  de  Fcirret, 
Faksooftr  im  Nswtoun,  et  Ho- 

Jtmni  Uo^ediellsrcarsc  CMnmufitoDiirius 
uukiftm  dictii  8^  D.  N.  lAiifts. 

Curia  Lg^itimc  aiGrinata* 

L  HE  sAid  day  aneiil  our  soveraigne  lordfc 
«^imiiisil  letters  of  treaaoa,  raised,  uised  an4 
^xciit,  at  tUe  instance  of  sir  Gwr^e  M^keo^ie 
of  Roselmiigh,  his  majesties  advocat,  for  h}% 

♦  "  ilarch  17  &  18,  168  L  At  Cnminal 
C^urt  the  beritora  of  Clidcsdale  who  were  m 
the  rebellion  at  Bothwelbriit^e  in  1679  beiug 
upoQ  the  (laniiel  ;  U  was  aUedg'e^l  for  Gada 
tiaiuiUoH  of  Uitl,  SOD  to  Itaplocb,  absent,  that 
be  cunlit  not  he  dechvred  fui^itire  fwhat  needs 
they  IjijIi  Uv  declared  fui,auve,  ami  a  sentence 
of  fortWkuie  Jikevv:^ys  he  pronouivced  oi^ainst 
them  ?  mij^ht  uol  ttie  last  serve  for  both  t)  be- 
eause  liavinir  beeo  in  prison,  tbe  privy  council 
liad  »t'l  iiiiu  at  liberty,  to  appear  at  a  day  not 
yet  come.  The  J  ustieiars  found,  notwith^and- 
ing  of  ihaA  bond,  that  he  ought  to  have  apnear* 
eQ  before  tbeni  in  i his  court.  2do,  aUeclped, 
He  was  iUegaily  suinmone<l  at  his  dwelling- 
liDUse  of  Hm  ;  whei-eas  forty  days  before  ttiat 
his  wile  and  fari*ily  dwelt  at  Slratliaren,  Aa- 
•wersd  by  tbe  kiii|^'a  advocate,  that  no  defie ace 
mtmU  hm  |if«poiie<&  for  an  ahf>ent  irattoi*. 
,  tbe  ^rty  days  were  intrudiieed  in  lii- 
r  of  ]Mtf«ii£rs,  that  if  a  man  hnd  suyed  40 
I  HI  m  place,  ihougb  it  was  tu9t  bia  c«sidei»ee 
I  daiBtcil.^  yet  tbe  pana^r  Mii^kt  mmtteen 
I  til  ere,  it  lonndio^  cam^eniittm/ofimnimsi 
Wlm  ;  b«it  not  vice  verutt  ibai  a  ciialiKMi  Miould 
hm  uida^fui  ii'  b^s  wetc  40  daya  abaeia4 1'roiM  his 
mnt  bouse  :  **  Tbe  ciiraitiAl  lords  ibiMvd  no 
I  drfmrr  could  be  propuiieJ  for  a  tniiloif  u&Jess 
■■jiMro  powQikt/'  Home  tbou^'bi  this  hurd, 
Mmnig  itmnifh  vo  casAAt  defend  in  cauiOy  yet  I 
f     My  |if9fa>nia  *  pcoliniiileixi  rationein  et  causa m 

*  abnenLa^'  aA  esai»BGBie  of  &ickn(:!j8«  or  stky  that 
Ii«  m  ab««tH  *  ntipytiiqc'eamiia,'  or  nut  at  aH 

li«wl»  broiiod  UlegaU^  at  the  wroci^ 

Olid  not  te  bt  cited  at  all,  are  e^^ulpiiiiiaut. 

**  ^uwrtlur*  ifa  creditor  oft  he  rebisia,  whose 

Mi^  m  Micwalvrnned,  oiay  appear  tbr  an  afaseDt 

trwutM^  aikd  pcodure  his  interest,  *  vid^ns  rem 

*  atiaaa  igi,^  so  tbdii  be  may  lose  bi&  rosney  ; 
ml  ii'  be  will  bo  adauMed  ti*  objed  agiim^  llie 


tb«r,  Lhivid  €»ibscm  thar,  Doiid  Robieson  tliOF^ 
caUed  Pocsio,  James  B^natttyno,  wrifbt  i 

!  Jaines  Park,  weai er  tber,  J«>bii  Stinp&,  mo 
ther,  J>avid   Weir  ther,  aire  to   Htij|(b  Wt 
titer,  Liu|()i  Iker,  son  lo  WiUiana  Ker,  in 

I  rtioakl,  Tbomas  logbs,  sboeroaker  in  Lanork 
Robert  Haddowc,  younjj^er   tberof,  Mr.  " 
filoek,  of  Silvertounhill,  John  Bttekle^younifer^l 


iHgbnes  enterest.  a^^imaat  Mno  WilvDn,  wroii 
ter  in  LAoerkf  and  beriior  of  0laiiiiepatJi :  Bird 
Thomas  Piltnns,  in  Lanerk,  James  Ia 
vvreilter  tber,  WiUiaaa  Ihck  ther,  Jr4in  Thom- 
soD,  carpeiiler  tkaVf  Alttxander  Brown  the 
.IrdiibBld  Symoon,  tb«-,  Dairid  Wbyi 
siBitb  ibir,  Tbomoo  Laueblan,  inercliand 
Iber,  WiOiaMn   FdrgoaoD,  weaver  ther,    VfiU 

ham  TwoMik,    ton    ti* TweddaJev'i 

late   balyie  ther,    Gideon     Weir,   ^tvnesmiili' | 


Baiial 


rdoraocy  aad  probation  ?  Tbougb  it  be  t< 
eatable,  yet  ii  was  thought  ii  woold  nol 
parmitted,  liis  beings  oaly  a  cit  il  irrierest. 
Gayl.  Lib,  1.  de  n^e  |»u1k  e.  10*  who  provi 
that  *■  in  criminaluHis  procurator  uao  debet  ail 
'  milli,^  but  the  ^tiitty  jKinnel  hiuneif  moat  bt 
persooaHy  present,  steing  the  jtidge  may  ex« 
piscate  atucii  froin  btm,  which  camiotbe  donA 
if  be  was  albwed  lo  appear  oniy  by  a  proci^ 
rator, 

«  For  otkers,  viz.  Muirbeod  of  Bradiabollii, 
<^c.  It  w^  alled^d,  tlmt  il  io  true,  ^  advo4* 
*•  caiua  fisci  non  prtestmiitar  oaliinioiBrt»'  yet 
gamknaaa  livea^  eilatts,  fomiaoo  ami  v^ral 
14011%  oiigbit  ool  to  bo  bionglil  ia  qaailina  wl 
oMt  ho  cotidosoenii  im  hi»  iofoctner,  thai  hm 
laigbt  siibscribo  '^  m  poena  tahouiB,'  both  cou<4 
tbrta  to  tlie  citii  kiw,  and  the  lavi  and  practico 
of  all  tiAtiottii,  yid  thu:  act  \'?H7  ;  for  the  ver]^' 
1 ----'--' ''3VC3  a  a?igiiio,  thukigk  ilieybeao#J 
e.  die  general  abnlilioae.  xbe  a#^  | 
u^  ..;.  ...Lhtred  he  bad  no  iniarsiitr,  bal  iHd 
privy  council  and  Kxchei|uer  having^  employed 
one  to  take  up  lists  of  all  suspect  porsons/hei' 
by  the  Coancil's  w^arrant,  now  pursuad  ibiaai 
**  Tbe^iisihnes  fouod  tbe  council's  warraalsafl' 
ficient  to  Itberata  Iba  advocate  frotn  coadcsocaik 
mgp  tipva  99^  otibiT  iulormer  ;'*  tboo^  Ihia 
■air  eiaeuatc  the  force  of  tba  said  jtist  act  of  i 

nMMBMaat. 

*^  Soctfti'rviUe  of  Urai  was  cleansed  by  thO 
assii£e.  Vide  the  assize  pursued  fwr  it,  Itilla 
Juoe  Itidh  l^ae  the  Case  p.  73,  oi  tbif 
Volunat,| 

'*  TlMea  ibo  advocia  ofibriog  ta  cottlinoa  tbaj 
diet  afi^ainal  tbe  rest  of  tbe  becilOBH  it  waai 
lerijtfed.  The  diet  was  peremptory,  and  baboira 
eithar  lo  bo  dcaarted,  or  else  tbey  isnmectiaael^ 
triad  and  put  to  llie  kuowU^dgt;  of  an  lasiaok 
'*  Tka  kola  found  iba  advocala  oug|ii  la  aaaiiil 


«47] 


33  CHARLES  11.     Proceedingi  agaifut  the  Lanerkihire  Men,     [248 


mason  and  wright  in  Lanerk,  Alexander 
Ba]jie,  smith  ther,  Alexander  Anderson,  liev- 
tenncnt  to  captain  Wilson,  heritor  ther,  John 
PiHujihruy  ther,    Thomas  Hinsclwood  ther, 

- 

against  Kuch  whose  witnesses  in  the  list  were  all 
present ;  but  as  to  these  who  were  not  in  that 
case,  continued  them  to  June  next,  he  ])eremp- 
toril)r  bringing  in  all  his  witnesses,  and  insist- 
ing ttieu  ;  otherwise  the  diet  should  be  de- 
serted." 

*'  At  this  time,  the  criminal  lords  got  a  pre- 
cognition what  the  witnesses  could  say  with 
doss  doors,  thon<i^h  not  upon  oath,  yet  caused 
ihera  subscribe  their  declarations,  ihat  quoad 
6uch  as  they  ibund  no  probation  again&t  they 
might  desert  the  diet;  \ihich  abridged  their 
labour,  there  being  upwards  of  seventy  or 
eighty  on  the  [mnnei ;  but  it  was  clearly  ^  pro- 

*  ditiu  testimonii,'  and  a  dau;^-ei'0us  novelty  eii- 
piging  the  witnesses  to  bide  at  what  they  say 
behind  the  panuePs  back,  and  very  irrec^lar  in 
the  Criminal  Court,  where  by  act  oi  parlia- 
ment 1587,  no  probation  can  be  taken,  but  in 
presence  of  the  pannels  ami  assize :  And  the 
use  of  these  precognitions  have  only  been  as- 
Fumed  by  the  privy  council.  Some  of  them 
^ho  were  continued,  or  dc serted,  (seeing  new 
letters  might  hereafter  be  raised  against  them,) 
desired  their  witnesses  in  defence  and  excul|)a- 
tion  roig^ht  be  received,  to  ly  *  in  retentis  ad 

*  probationem  innocentiae,'  lest  they  should  die 
medio  tempore.  This  was  refused,  seeing  the 
king  ran  the  same  risque  with  his  ;  yet  they 
]iad  precognosced  ;  but  that  decluratiitn  (if  the 
witnesses  died)  would  not  prove.*'  Fouutuinhall. 

<<  Ui)on  the  18th  and  2l6t  of  March,  1  find, 
by  the  registers,  prcat  numbers  of  heritora  in 
the  shire  of  Lucerk  are  present,  and  called  :  I 
mav  class  them  in  two  branches  ;  some  of  them 
make  a  resignation  of  their  lands,  and  are  dis- 
missed ;  and  others  of  them  stand  their  trial, 
And  are  Ibrfeited,  many  of  them  in  absence. 
iW  the  first  sort,  John  Williamson^  son  to 
■Icstpli  IVilliainsuii  heritor  in  Holl,  John 
!S|jr('ul  \()iingi-r,  writer  in  Glasgow,  James 
IVaikor  younjjer  of  ilaekethurn,  William 
Twcddalc  late  Kailie  of  Lanerk,  Hugh  Weir 
mcn-luint  there,  being  pannclled,  they  have  an 
offer  n.ade  to  them  «;f  the  king's  indemnity, 
and  accept  of  it,  and  icnuunce  and  resign  in 
favours  of  the  king,  commissioners  of  the  trea- 
sury, :ind  ihfir  donntors,  all  lands  and  heritages 
ihWvn  to  them,  or  which  they  had  a  rig^ht  to, 
before  his  im'jesty's  act  of  grace,  ann  as  to 
llicm  the  loriis  (U'si-rt  the  diet  hi  pcrpeluum. 
This  was  a  kind  of  composition  by  voluntary 
pailinpf  with  that  part  of  their  heritage,  which 
Ihcy  had  a  right  to  in  their  own  person,  and 
then  at  the  death  of  their  parr nts  they  came  in 
to  the  rest  of  the  lands.  Thus  somewhat  at 
least  was  preserved,  but  it  was  but  few  got  this 
lavonr. 

•'  The  far  greater  number,  who  were,  as  the 
fiirmer,  cited  to  tliia  diet,  and  indicted  in  com- 
loon  fbrna,  as  guilty  of  therebellionat  Bothwel, 


James  Muirhead,  smith  ther,  John  Jack  in 
Nemphler,  llobert  Frnm  ther,  ^Villiam  F«d- 
zean,  mason  tliei*.  Hew  '8omcrvaill,  of  Wdl- 
frads,  John  Hutchieson,  of  Ilairlawe,  Somer- 

met  with  harder  measures,  as  David  White 
smith  in  Lanerk,  and  other  forty  six  belonging 
to  Lanerk  shire,  whose  names  are  insert  in  the 
proclamati(»n,  of  tlie  date  October  8.  Thes^ 
nad  probation  led  agabst  theui  in  absence,  and 
all  that  is  proven  against  most  of  them  is  con- 
verse with  rebels,  when  they  were  goinff  op 
and  down  that  shire,  and  lying  in  camp  there, 
in  which  the  whole  shire  was  neoeamiH]  at 
that  time  involved;  and  they  are  all  fomted 
in  common  form,  and  ordered  to  be  execatedas 
traitors,  when  they  shall  bo  apprehended. 

*^  A  ievr  others  ar^  brought  olT  by  the  Ter- 
dict  of  the  assize,  as  not  having  their  indieC- 
,  mont  proven  against  them :  Indeed  the  proba- 
tion against  them  who  are  forfeited  is  abuii* 
dantlylame;  but,  it  seems,  the  advocate  voold 
hiave  all,  who  did  not  resign  their  iandsy  to  be 
concluded  under  the  same  condemnation." 

"June,  1681.  It  being  represented  to  die 
council,  that  many  persons  in  Kirkcudbright, 
Wigioun,  and  Dumfries,  who  were  in  the  lite 
rebellion,  contiiiue  in  their  houses^  and  in- 
tromit with  their  estates,  the  sheriflb  and 
other  magisti-ates  are  ordained  to  seizie  aiod 
present  them  to  justice,  and  at  the  same  time 
to  secure  their  rents  and  lands  for  bis  roajcit/i 
use :  It  is  likewise  recommended  to  them  to 
6cciirethecou:iiry  from  field-conventicles,  and 
punish  such  as  are  guiltj^',  witli  certificatkiOi 
that  if  they  fail,  the  council  will  sendln  forces. 

"  In  a  little  time,  those  onlers  are  more  ge- 
nerally extended  to  the  shires  of  Lanerk, 
Air,  and  Galloway,  in  a  proclamation,  which 
because  I  have  not  seen  in  print,  and  it  contain 
a  good  many  of  such  as  were  forfeited  hit 
year  and  this,  1  have  given  it  here  from  theic- 
gisters : 

'  Charles,  &c.  greeting.    Forasmnch  as  the 

*  persons  underwritten,  are  by  decreet  of  the 
'  lords  commissioners  of  justiciary,  forfeited  ia 

*  their  lives,  lands  and  goods,  for  their  treasMi- 
'  able  risinsf  in  arms  in  the  late  rebellion  it 

*  Doth wel -bridge,   viz.  David  White  smith  in 

*  Lanerk,  Gideon  Weir  gunsmith  there,  Dmk 

*  Gibson  there,  John  'AV  ilson  writer  there,  Ur. 

*  Thomas  Pillans  there,  James  Lawrie  write 

*  (here,  Archibald    Simpson   there,    Thoinii 

*  Lauehlan  there,  William  Fergusson    them, 

*  John  Semple  mason  there,  Thomas  liyb* 

*  there,    Alexander    Anderson    there,    John 

*  Fumphrav  there,  John  Jack  in  Nemplair, 

*  Wilham  Tadzean  mason  in  I^anerk,  Robect 

*  Lockhart  of  Birkhill,  James  Weir  of  John* 
*•  sliilp,  John  Steil  in  Overwaterhead,  Joha 
<  Haddow  in  Douglas,  James  W  hite  theie^ 
^  William   Falconer    in    Hamiltoun,    Aithor 

*  Tacket  there,  Gavin  Wotherspoon  of  Heath- 

*  rie-know,  John  Eastoun  |>ortioner  of  Qiuunrv> 
'  neen,  Kobert  Goodwine  maltman  in  GiaaMr, 

*  James  Cuningham  merchant  these,    Smb 


849] 


/or  Tnincn* 


A.  D.  1^81. 


[250^ 


Tmill  of  Yaifdbouse,  I^uVe  Greinibeills  of 
Hog^swajitle,  liobert  Lockbftrt  of  Birkhitl, 
Gavin  UiimiUon  uf  Hi tl»  Gavin  11:iiiiiilua|  of 
W'eaiiowe,  James  Weir,  of  Jolmshill,  James 

*.  Blackwel  son  to  Tliomiis  Blackwcl  there, 
<  W ilium   KitUleJ  Rnmriii   KutherglfO,  Ilobert 

*  Fleminar  of  Aui'liinfiu,  JoIiq  [^amittori  feuar 

*  ID  liogepumn,   Tbomas  Crai^  feuar  in  Jack- 

*  touti,  John  Miller  feuiir  of  Lon^calderwood, 
*JohLi  Wihon  of    Hjghflept,   Itohert  Sloven 

*  feuar  of  Newlant),  Jobti  Stcil  of  Wmiibltlf 
•.John  Cochrun  of  Cragie,  James  Dykes  por- 
'  tiotier  of  U  alburn  J  Joliu  Carduf  feuar  in  Jack* 

*  toun/fht^maii  Patou  at  Old-kiik  of  Camne- 

*  ihaii»  Jobo  Whvtlau'  of  Bolbwel-sbeii,  John 

*  PatersonUiei-e,'John  White  of  Ntwk,  Tbo- 
•mas  Lin  of  Blairacbiri)  Jolm  Weddale  of 
'  Chisdale,  John  Clyde  in  Kilbride,  all  in 
^  Lanerk  sbire ;    GiUifrt  Al*lewrath   of  Dom- 

*  chory,   Tlioma**   Mac j arrow    of  Bar,    John 

*  Majarrow  of  Penjanow,  Henry  Macjarrow 
•of  Athalbaiiy,  George   MVhir  of  Beoman^ 

*  Henry  M'lewnith  ol' Auchinflonr,  Joho  Alex- 

*  ander  of  Duiouchry, M'unken  son  to 

* M^uoken  in  Hilkertotinf  Alan  Bovvy  soti 

*  to  Bowy  of  Drumley,   James  Wood  in  Air, 

*  Painck*  Mulougal  of  Freugb,  Mr.  Williain 

*  and  Alexander   Gordons  of   Earistonn,   Mr, 

*  Wiiiiuoj  Fenrussrm  of  Kaitloeb, Dunbar 

•younger of  Maeliirmoir,  John  Bellof  White- 

*  side,    John    Gibson    of   Aucbincbero,  * 

*  Gibson  youESfer  of  Inglistoun,  Gordon 

■  of  Deodeocb, Grier  of  Dalj^onar,  -■ — - 

*  Smitb  of  Kilroach, M*IeHan  of  Bar- 

'  rua^ebun,  — ^   Gordon   of  Craigie,   

*  Lennox  of  Irelanduun,' ►Gorduntd'  Bar- 

*  barrftOf   John    Fmvberton    of   Auchinehrie, 

*  David   M'cullocb   son  to  Ardwell,    William 

*  M  bitehead   of    IVtibbouse,   John  ^Vdeh  of 

*  Cornley,  — —  Neilson  of   Corset' k,  Robert 

*  M'lellan  of  Barseob,  Samuel   Miellnn   bis 

*  brother, ^FullnrtounofNetbcrnull,  (itorge 

'Mackartoey    of  Blaeket,    Gofdon    of 

•Garrery, Gordon  of  Koockgray, 

*  Herron  of  Little-park,  — ^ —  Gordon  of  Holm, 

*  — «  Gonlon  of  Orerbar,  John  M*naug^lii  of 

*  Culg-nad. Murdoch,  alias  laird  Murtioch, 

'  Andrew  8worri  in  Gallouay,  John  Miilcolm 

*  in  Uafry,  tn  Galloway.     Which  persotii  (as 

*  we  uie  inlurmed)  do  not^vithstutidini^  hve  and 

*  reside  at  or  near  tbeir  dwedin)^  liluees,   and^ 

*  by  thcmsolveflf  or  otber&%  to  tbeir  use  and  be- 

*  hooff  do  iiplit),  (MissesB,  and  enjoy  tbeir  lauds, 

*  rents  Hud  goods,  as  if  they  were  our  free  and 
•peficeaMe  subjects,  in  hi|rb  and  proud  con^ 

*  tempt  of  U9^  otir  authoiity  aud  lawjs:    We 

*  therefore,  wiih  advice  of  our   privy   counil, 

*  d<»  hereby  ^ive  aod  jf  rant  fuU  power,  4tjthority 
^  aod  comrnLsfiioa  to  the  sberitfs  principal  of 
•the  shires  of  Lanerk,  Air»  Dumfries,  stevronl 

*  of  the  8te%vartry  of  Kirkudbri^ht,  sir  Andrew 

*  A^new  of  Lochnae,  RheriflT-pniicipulof  Wig- 
<  tonn,  aod  ibeir  deputes,  to  pass,  pui^uc,  take, 

*  npprehend}  impri<iOD,  aod  prei^int  to  jtisti<:e 

*  the  foresaid  rebels  and  traitors^  w  herever  they 

*  CUdi  be  found  in  any  [>arl  of  their  shire  or  ju- 


M*Qiiliarrie  of  Scorieholm,  John    Sleill, 
Overwatterbeodj  John  Whyal,  of  Neak,- 


Muirbead  of  Breidisbidme,  *  John  H»ddo»e,j| 
in  Duug^las,  Jai^es  Whytt  ther,  Jumes  Semple 

'riidictloD;  ajid,  in  case  of  assistance  orhostil*' 
^  opposition,  to  pursue  them   to  the  dtrath  by' 

*  force  of  arms,  or  drive  them  forth  of  ihe*1 
*•  bounds  of  tiieir  shires  and  Jurisdictions  ;  and,' J 

*  if  need  be,  are  to  call  to  their  assistance  sucb'l 
*■  numbers  of  our  goud  suli|ects,  as  they  shalJCl 

*  find  necessary  for  their  assistance,  wfio  are'l 
'  hereby  ordained  to  concur  with,  lortify  and] 
'  assist  our  comiuiaionera   foresiiid  in  this  our  f 

*  service,  as  they  will  be  ausuerable  at  ibcir  lit-' 

*  most  peril.     And  if»  in  prosecution  of  the  sahf  j 

*  rebels  and  traitors,  any  of  them  iditill   lie  mu-' j 

*  tilate  or  slain  by  any   of  our  said   conmiis-  J 

*  sioners  as.sisting' them,  we  declare  that  *bey  j 

*  shall  never  be  pursued  or  called  in  questioii] 
Hberefore.,  but  that  the  same  shall  be  reputftj 
^  and  esteemed  ^ood  and  aeecptable  service  to  1 

*  us.    Given  under  our  signet,  at  Holy-rood- I 

*  house,  the  B  day  of  October,  1681,  andof  ou/1 

*  reigu  the  33  year.    Subscribed  ut  in  Sede-*] 

*  runt,'*     2  Wodrow,  159. 

*  Wodrow  gives  the  following  accoont 
this  and  some  subsequent  proceedings  a^^ainsll 
*'  that  rehg-ious   and   worlliy   gentleman    tb%| 
laird  of  Bradishcdni  in  the  shire  of  Lanerk/\ 
from  original   papers,  furnished  by  the  laird^ 
*'  of  wbtim,'^  pri^ceeds  V\  odrow,  **  i  woukl  sa% 
more  if  his  mudesty  did  not  forbid  me/' 

"  James  3Iuirhead  of  Bradisholm,  liad  1 
still  a  countenancer  of  Pre&byicniio  ministers  $^ 
and  before  the  risiug  at  Bothwel,  by  scleral 
summons  and  other  papers  before  uie,  I  fmd 
be  was  brought  to  much  trouble  before  the 
privy  council  and  other  courts,  and  paid 
consitlerabic  sums  of  money  for  bearing  the 
gospel  preachetl  by  Presbyterian  ministers,  ilc 
was  further  charged  ancf  finetl  for  harbounu;^ 
Presbyterian  ministers  in  his  boose,  and  be* 
cause  they  prayed  in  his  family,  v^  hen  f liey 
came  to  visit  bim,  be  Has  made  gtiilty  of  a 
house  conventicle,  and  underwent  several  ar* 
bitrary  tines. 

*^  111  tbeycar  1679,  at  the  rising  «t  n<»lhwcl, 
his  hoiiise  being  within  two  miles  of  the  place 
of  engftgenieut,  he  carried  with  all  the  caution 
he  was  capable  of,  and  retiretl  from  his  own 
dwcllin^jf  for  'several  weeks;  yet  he  ivus  in- 
dicted bel'ore  the  circuit  1681,  as  being  in  the 
rebellion,  though  with  on  t  the  least  sliadr*w  oi 
truth.  His  indictment  is  in  my  hands,  and 
runs  in  the  common  fcnni  above  insert.  After 
til e  examination  of  a  prodigious  mimbwr  uf  wiU 
nesi*eH,  and  nothing  being  proven,  and  when  he 
hud  given  in  a  representation  against  some  of 
his  pursuers  for  suborning  of  witnesses,  ami 
oNered  to  pix>ve  it,  the  matter  was  husheil 
lip,  aail  by  an  onler  of  cnurt  just  now  be- 
fore nil-,  all  further  prosecution  of  bim  was 
dischaigid. 

^*  When  he  was,  a3  he  thought,  secure^  be  is 
a^4iu  put  into  tlie  poiteous  roU,  and  before 


Ǥ1J 


^3  CHARLES  II.     Proceedings  agmU  the  Lanerkshire  Men,     [3» 


maUman  in  HamiltouD,  Jamea  Lockhart  called 
laird  l>ockliart,  in  Hamiltoun,  William  Fal- 
Gooartbei',  Anbur  Tarbct  ther,  WilJiuin  Polr 
lock,   siiiitb    titer,    John   Scotta,  diler  and 

this  circuit  at  Glatjg;ow  receives  a  new  indict- 
ment, which  being  but  short,  1  insert  from  the 
original.   *  James  Muirhead  ot*  BraJisholm 

*  voun^cr,  you  are  indicted  for  the  crime  of 

*  high  treason  and  rebellion  in  joyning  with 
*tiie  rebels  June  1679,  and  beiuff  in  their 

*  comjpauy  with  arms  at  the  SchawLead-muir 
'  Hamiltoun,  Uamiltoun-muir,  and  sci-eral 
*•  other  places,  aiding  and  assisting  them, 
« giving  and  sending  out  meat  to  them,  or 
'  otherwise  supplying  them,  sending  out 
*_  horses  and  servants  to  them,  counteuanciog 
'and  favouring  of  rebels,  accessory  to  the  late 

*  rebellion,  harbouring  and  resetting  of  them 

*  in  your  house,  upon  the  ground  of  your  Wad 
*•  as  tenants,  receiving  onaii  and  dut^    from 

*  them,  conversing  and  iutercommunmg  with 

*  them,  particularly  you  reset  and  keiit  Robert 

*  Turner  in  Goodocniil  upon  your  lands,  as 
'  your  tenant,  and  receives  mail  and  duty  from 

*  nim  ;  for  all  which  crimes  you  are  to  uqderiy 
« the  law.' 

**•  To  say  nothing  of  this  informal  and  ge- 
neral libel,  when  he  appeared  with  other  gen- 
tlemen he  was  continued  till  the  25tb  of  July 
at  Edinburgh,  where  1  find  by  a  si^ed  extract 
^'the  act  of  ailjouma)  he  was  liberate  from 
prison.  The  act  itself,  containing  his  petition, 
and  a  short  hint  of  his  strange  usage,  deserves 
a  room  here. 

Ipud  Edinburgh,  S5  die  mensis  Jnlii,  Curia 
legitime  affirmata. 

'  The  whilk  day  anent  a  petition  presented 

*  to  the  lords  by  James  Muirhead  of  Bradisholm 

*  youD'^cr,  shewing.  That  he  beiog  formerly 

*  (1()81,)  convened  before  the  suid  lords  fur  bis 
'  uUedgcd  being  in  the  lale  rebellion  at  Botli- 
'  wel,  and  exact  trial  made,  and  seven  hundred 

*  witnesses  or  thereby  b«.'ing  examined  ^aimtt 
'him,  nothing  of  guilt  could  bo  made  appear, 

*  and  ihc  i>ctitioner  having  then  ]>re8sed  to  go 
<  to  triui,  and  having  an  act  of  council  for  that 

*  ed'ect,  the  lords  at   that  time  deserted  the 

*  diet  siinpliciter,  and  discharged  all  new  letters 
<an(l  dittays,  except  by  a  warrant  in  pne- 

*  sentia :  And  yet,  wilhtiut  any  such  ivarrant, 

*  he  was  put  in  the  portcous  roll,  appeared  at 

*  Glas<T<)w,  urged  a  tri-il,  and  was  continued 

*  to  Edinburgh,  where  !te  offered  of  new  to 
'  abide  a  trial,  but  was  committed  to  prison. 

*  Tbercl'ore  craving,  that  seeing  the  petitioner 

*  hath  been  so  oil  troubled,  and  always  appeared 
'  and  h  now  ready  to  pass  to  the  knowledge  of 
'  an  BUMiAQ  for  clearing  his  innocence,  and  is 

*  ready  presently  to  exculpate  himself  by  fu- 

*  mous  witnesses,  that  he  be  ordained  to  be  set 
'  at  liberty,  and  the  diet  deserted  simpliciler. 
'The  lonl  justice  clerk  and  cominiHsioners  of 
'  the  justiciary,  having  considered  the   uud 

*  peCitiiMi,  do  ordain  the  pcliiioner  to  be  set 
<alliber*v     H^rtcacied  forUi of  IbQ  books  of 


younger,  UdingatouD,  James  Coras  ther»  Alta-- 
ander  Corss  his  sob,  James  Rae,  soa  to  Joha 
Rae,  fewer  ther,  Jolm  Wilkie,  son  to  Jmkm 
Wilkie,  in  Know  head,  John  8oott,  in  Kcamiir, 


'  adjournal,  by  me,  Mr.  Thomas  Gordon  dodc 
'  to  the  justice  court.'         Thomjui  Guhmm. 

"  At  this  time  there  was  no  security  fiir  9my 
body  who  had  ever  tavoured  PresbylffdaM» 
and  so,  notwithstanding  of  this  soctod  ahaolti- 
ture  by  the  criminal  court,  neat  year  at  lll» 


circuit  be  is  again  put  into  the  porteou* 
for  the  same  pretended  accession  lo  Batkw«|; 
and  when  he  would  not  purge  himself  by  takm^ 
tlie  test,  he  is  remitted  to  Edinbui^gh^  wIhb 
be  is  libelled  belbre  the  council  ibr  i 


verse,  keeping  conventicles  andotker  po■^>^ 
and  his  oath  is  taken  upon  the  artkka  of  tkm 
libel.  And  because  in  his  depoaitioa,  he  a»- 
knowfed^es  hia  having  had  four  tuMes  Pivakj* 
terian  ministers  in  bis  house  sinca  the  i    * 


Gonveuticbes,  and  fined,  according  to  a 
account  given  in  of  hia  valuatwii,  as  an  1 
in  fhwr  tboumid  marks,  and  waa  kept  in  _ 
about  fourteen  montlis  at  Edinbuivfal  AH 
this  I  have  ^ven  the  more  disiindly,  heoeaae 
every  |nrt  ot  it  is  vouched  by  principal  papsii 
before  me.  And  this  was  the  case  of  e  p 
maay  other  worthy  gentlemen  nmi  yea*  i 
this." 

With  respect  to  the  great  nmnber  of  viJU 
nesses  examined,  Wodrow  says,  as  aNaie^ 

"  Because  tlus  may  appear  strnege  le 
such  as  know  not  the  metheifei  of  Ibis  timm%.  iC' 
would  be  noticed,  thai  in  tiie  year  1681,  mmj 
more  witnesses  than  700  were  cited  in  to  lU6n- 
burgh  from  the  West-country  agaiosi  tiM 
gentlemen  then  indicted,  and  they  were  el 
interrogate  with  respect  to  each  genileman  wdie 
stood  his  trial." 

It  farther  appears  from  Wodrow,  Vol.  2«  pi 
42Q,  '*  that  iu  Deceoiber  1684>,  a  decreet' wee 
passed  by  the  cutiucil  against  Jamea  Muirheei 
of  Bradisholm,  and  otliera :  their  libel  waa  mere 
non  conlbrmity,  and  alleadged  reset,  and  OOB* 
verse,  and  refusing  the  oath  of  allegiance  wkll 
the  king's  iH-erogative  annexed,  which  Hmy 
did  not  reckon  themselves  obliged  in  law  te 
take;*'  whereupon  tlie  couecil  fined  thesa  is 
difi*erent  sums;  Muirhead*s  fine  was  4,M09 
merks.  It  seems  that  Muirhead  was  aAar- 
wards  imprisoned ;  for,  Wodrow  notes,  iiiMlBr 
date  September  11,1685,  that  Muirheedi,  of 
Bradisliolm,  was  lilierate  uMler  a  bond  of  40M 
merksto  re- enter  October  12.  Intreotiaff  ef 
the  proceedings  of  the  ciicuit  courts,  heHl  im 
difierent  parts  of  the  countr}'  in  the  yeav  liU^ 
Wodrow  says,  tlut  the  p«Mteous  roll  Ibr  fli^ 
shire  of  Air,  so  lar  as  he  couid  guess,  wImd  km 
Iblded  it  out,  '*  consists  of  upwards  of  SUOahcets 
of  paper ;  that  of  tlie  shire  o^'  Laaerk  is  upsv^ids 
of  200  sbuets,  and  noetains  the  whole  gl«tr|iaf 
that  shire  almost  witboii4  esoeptioia.V  Vet  % 
PP.31M17. 


859)  ft*'  trwnn. 

MmMcM^hk  mm,  Rolieit  Cait^.  M^oilsetiflr 
in  U4<ni;«lrfito,   Joliti  Oofsr  In, 

Janrn  11i(»m<oii,  ficntinnero:  itn 

«utl  yoovgcr,  ia  Easter  Olemorle,  J-olift  nuBiiH 

0Mlberiiiliiiowe,  WiUiwn  WmIik*^,  portiofivr 
of  MainhiH,  Jamrs  Gn;  nn* 

*■  GrayluKicm,  ler 

«i€G«niafiliefi|  i«mes  i^ray,  nr  n<inpKnow», 
Wftllnr  uon^ten,  poifMinef,  of  lUbroiHotiii, 
Mr.  John  Spr  t^^'  -^  '*'-=rr3tih»Hi»  ^ireitter  it! 
we,  J 

My  ,  ^. ..,,..  -^ 

O«iodvii>,  rnuJtmttfi, 
e,  nercliiiH  in  Cilivs<'f>^^ 


MMiilivnry  ,  u,.,,..  .W"'    i^'i-ylitih*^, 

liolMit  O«iodvii>.  rnuJtmttfi,  utuiinir- 

r    thcis 

;  nier   ai    Muilefiiiartifr, 
nml  portiotier,  of  Shet - 

\nmi\  toylor  &D<I  fcwar 
tber,  Ifvi^H  Kff,  ot  Howehousi,  Hubert  Fley- 
tnlfl^,  of  AucKinrtiK%  VV  iUiani  I'ark,  fewiir  of 
iLMrivkSf  Johu  IliHi  '  tV'warof  Kogci^uii) 
Thomw  V  ritig'  fc\«  tafim ,  Da^id  Linde* 

«igf'p«iftioiM»r  Uifeixn-.,  >Miitt  MiHar  yotniger, 
fePM  in  l.0«£f  CntlMnvoad,  Jobo  Witsou,  in 

tloclimie,  ymwmtt  or  * 
Yoiiii^,  of  fciltull,  Thot^  I 
iMer  of  FioM«n4,  James  b v<'kf»/ ]torti<«t]^r 
Off  HtOhame,  John  Caradiiff/  fis^uir  in  Sire- 
v*ti,  JaoKM  Huntitton,  elder,  in  Prym-IiiH, 
Hticbtrd  Maikti^,  m  Tw«*i4iii«yd,  Jutncs 
WUInr,  ymm^^  of  lUlkctbiifn,  Tbomai 
i%llte««t'fli«  olti  kirk  uf  CnmiK-lhRt],  John 
Clr«y  of  0irD^tvi1l,  Robert  8ieill,  in  SUinio, 
Mm  Wbilkw«,  in  Oottmrliihetlb,  Jnbn  Vit- 
tfftiMi  tbor,  WiMiafiii  W«iilrop«r,  portkincr  of 
&Mir  Ontb«4MMt,  Mmi  €?tlberli«^  j9\xitf^^ 
puMiwitr  of  WMaoeHe^,  linb^rt  Russ}!},  |iar- 
tiMier  tbevpf,  J<iiii  Mtlbr,  of  Wiittprsbnu^, 
Jahn Nbnaioin iW fforih  Jr^hu M']r\  tt  voiinnnpr, 
^fl^ckbrkl  >n. 

inift  Geof^f  tii- 

bdid Ctmlnml^  ol  KmrnohUhiiL  Jatii*^  llamiU 
too  (»t'  linUyd,  JamcK  Ituiu1Ur»n,  ol'8c<mphally 
Tbarau  und  JfLincji  AktDiinft,  nf  Mftines,  John 
IhlMtllih  fnwnr  in  llnfuitifii^  Wflliuft  l^k*<, 
i«i*LtnT"^  '  .i««rt  and  Wiibam  Cilttmurs, 
tf€fti*ii<  'f^^   Al4?xafidci.'  MurimVt  ^^ 

IMitouiiiif^ud^  luid  l>y«k«  Oiiivtn  S^inplp,  'pr- 
#Qii«r  <if  KifkwiM>rf^  TboiWfM  Brownhr,  p<ir- 
•f  Cfj"*"**  '^»?<rnMui  In^iier,  pArtsoMY  of 
(•«,  of  F4«iiiUmiB|  J^meai 


A.  D.  159 1.  [954^ 

giAtoJr,  in  Eit)(tfT«eai,  Joltn  WHIiAtmon^ 
ymmgrr,  heritor  of  the  lunds  of  Hull,  «ni| 
John  WiUiamson«  son  to  Robnt  Wi11iiitii»0Dy 
«^1ed  k>rd  of  8botcleiieg^,  cQftkAiid  roeotiou 
thM  frerTiotwithstiindiit!^  he  fh**  cwmmon  In  fie, 
liiwc  *'     ■  lament  of 

thiskii  irpoi;Tii4 

rj^iseiutJ    ot    Ins   liinjcsiit's    bu lyre 4s,    or    any 
nutntver  of  theni)  thejoynrng  And  ossiemhlin^ 
tmg^itber  in  armes  without  and  contmir  to  bttt 
mnesties  conitnaind,  warraiid  and  ntilhoriti<^^ 
and  the  abaitincf,  assisting,  fecep«inp^,  inter* 
oommonirjc  and  keepings  correspoui1et*f*e  witli 
such    rcljcll?*^   and   supplieing'  of   ihem    wilH 
levins  of  mcHi  horse,  inouev,  armesi  and  I  or* 
niKbini^  thtni  with  roe-at,  (frink,   powder,  hftll, 
and  other  munition  bellicalJ,  are  most  deta«tft*  | 
hie,  horrid,  by  nous  and  abominable  cry  ittes  of 
rebellion^  treason  and  lese   majestie,  ftnd  &M 
punishabJe    with    f[>rratilitiFe    of   Kif,    lam* 
henta^*?*  and  escheat  of  tbcr  moyaWcsr,  and 
the  third  act  of  the  first  parliament  of  *^ 
James  the  Rmt,  It  ii  statat  and  ontatned, 
no    man     oppinlie    nor    nottoriouslie    i 
Against  the  kinij*8  person  under  the  patu. 
foHaoltinsf  lyflT,  land  and  jcroods :  and  bt 
ibrettie  sevinth  act  of  the  second  pirHiameDl 
kffig  JAmes  the  First,  it  is  statnt,  that  no  mi 
wilfellic  receipt,  mantaine,  or  doe  fatonrto 
pin  or  manifest  rebella  a^inest  the  king^s  m* 
I'-Stie  or  common  lawe  under  the  paine  of  for< 
laulfrire  ;  and  be  the  fourteint  act  of  the  U 
parliament  of  king'  James  the  second,    tt 
stiTnt,  thai  DO  man  rebell  ftgfaine^  thekin^%' 
pe?rs(m  or  anthorilie,  ormakewarc  ag^inc&l  tji% 
king's  leidgTSt  nod  inhoso  does  to  the  cod  trait 
to  be  pnni^fH  «flvr  tbo  onatitie  and  qnantttit 
of  siclire^  '  A  be  tne  twentie  fylt  act 

bia  9ext  \<  it  k  fitatut,  that  if  tnyj 

iMRi  oonmun  or  nor  trisftson  a^inesttbe  Idngvj 
jMieuii,  m  ryse  in  featr  of  wear  fifpnneil  htnii 
or  recrpte  any  that  has  committed  treaaoti, 
supphe*  tliem  in  lielp,  redd  or  conocill, 
h.    niM.cKr-M  .ic  traiiom  ;  nnd  be  tli»*  f^iM, 

)i  act  of  the  twdth  |  t 

*j  ..^     _'  :.  .     ,    tin-    sivt.    It    is    V  X 

wherever  any  <"  f 

part  of  thiM  niilii  ,  <  j 

whall  prt'sunie   to  rece»pl,    ftuppUe  or   itit«r- 


Aithl,J(dto  \ 
JliMwdi,  po: 

^iifcr,  |iortiMier    of    1 
jMMpir,    MflfOcMr   t 


iij^T  of  Flack. 
In  Kito('hs\  d 


ik, 

i>ubt 


cnmnfn  with  ih'rn,  or  ^^r  thrm  any  tddff  of  j 

■.    ■  '      '  ■         '!«<' 

tic\  '  'lilh^eni 

in     N  the    Bail 

traftr>r%  rina  rLOcii*J,  nnn  uku  wnu  t\iitpcitd\ 
cfTtttW  l(ts  miiycBlie,  or   9omc  of  hn 
r--'     "  nrfome  |>erf<nia  of  nnthoritie  or < 

t  he  fthjrr,  that  such  rehcn*  are  wittnttl 

t  ,.     ,  amUrtht  p-.m.  fUtti  the  saidf  traitoi^J 

fiiHl  reltells  ought  to  they  if cr  i 

piehcndit  niKl  ronvi  :  I\kLva^bel 

,>  .  ^     '  aIW 

h )  c  trrastrn  t n  I  he  m  i  l  U  is   k  tltf^tloTIIf^l 

or  any  numbrr  of  ti i  or  icsae^   npOlt^ 

wty  ground  or  pretext  n  httiiwaicicr,  to  r\^  tfr 
cmnt&ue  m  armes,  to  mtkt  peioe  or  trirf  ^  m 


S?551 


33  CHAULES  IL     Proceedinga  agaimt  the  Lanerkihire  Mem.     [S56 


to  make  any  treaties,  or  leagues  with  rorrai|rne 
princes,  or  estates,  or  amongst  themselves  with- 
out bis  majestie's  speciull  authoritic  and  ap- 
probation, first  interpoued  therto,  and  all  his 
roajestie*6  subjects  are  discbair^red  upon  any 
pretext  whatsoroeFer  to  attempt  any  of  those 
thioi^s  under  the  paine  of  treason  ;  and  be  the 
elevinth  act  of  the  first  session  of  his  ma- 
jcstie's  second  parliament,  it  is  statut  and  or- 
dained, that  iu  tyme  comeiugf  in  all  cases  of 
treasonable  rvsuini;  in  amies,  and  oppin  and 
manifest  rel)ellion  a^uinest  the  king's  majestic, 
his  h;^ne8  advocat  for  the  tyme  may  and  ought 
to  insist  againest,  and  nrosecut  such  persons  as 
he  shall  be  ordored  be  iiis  majestic  or  his  privie 
Gouncill  to  pcrsewe ;  and  if  they  be  cite<l  ami 
doe  not  appeir,  tlic  justices,  notwitlistanding  of 
ther  absence,  may  and  ought  to  procee<l  to  con- 
sider and  give  ther  interloqmtor  upon  the 
lybell,  and  it'  it  be  found  relevant  to  admitt  the 
same  to  the  knowledge  of  ane  assyse,  and  upon 
the  verdict  uf  the  inquest  ftnding  the  same  to 
be  proven,  the  doom  and  scntance  of  tbrfaulture 
ought  to  proceed,  and  be  given  and  pronunccd 
in  the  same  maner  as  if  tuc  persons  accused 
Lad  compeireil  and  wer  present ;  Nevertheless 
it  is  of  veritie,  that  the  saids  John  Wilson, 
Mr.  Thomas  Pillaas,  and  the  other  persons 
above-named,  and  ther  associats  and  accom- 
plices, shacking  olf  all  fear  of  God,  conscience 
aind  sense  of  duty,  aleageance  and  loyaltie  to 
the  king's  majestie,  ther  suvareigue  aufi  native 
prince,  most  perfidiousiie  and  treasouablie  pre- 
sumed in  coid  blood,  and  in  the  nighttime,  upon 
the  day  of  Apryll,  16r9,  to  murder  and 
kill  ,  a  soldier  in  captain  '  com- 

pany, and  \ei\  another  of  the  saids  souldiers  ibr 
dead,  and  John  Balfour,  of  Kinloch,  David 
Hackstone,  of  Ilathillet,  and  others,  having 
upon  the  third  of  May,  the  said  year,  killed 
and  murdered  his  grace  James  late  arch-bishop 
of  St.  Andrews,  they  to  escape  jusiice  and  in- 
volve others  in  ther  guilt,  went  unto  the  western 
shy  res,  and  most  treasonabliejoyned  in  armes, 
wth  the  persoues  above  named  and  others,  llier 
dissolut  and  flagitious  accomplices,  under  the 
command  of  Hubert  Hamilton,  brother  to  the 
laird  of  Prestuun,  and  upon  the  twe  ntie  nyntli 
day  oi  the  same  moneth  of  May,  a  day  appoynt- 
ed  for  a  solcmnc  thanksgiving  fur  his  majesties 
restauratiDU  to  the  royall  government  of  this 
kingdoinc,  did  goe  to  the  burgheof  Uuthcrglen, 
and  tiicr  most  proudlic  and  treasonablio,  hav- 
ing read  acts  of  ther  own  coyning,  they  most 
treasonablie  and  wickedlie  burnt  several  acts  of 
parliament  asserting  his  majestie's  preroga- 
tives, and  establishing  the  government  of  the 
churclif  drowned  out  bonefyi'cs  sett  on  incom- 
uiemoration  of  that  day,  and  therafter  they 
and  ther  reliellious  associates,  to  the  number  of 
fyveor  sex  hundreth,  did  wayUy  a  small  and 
lewe  number  of  men  under  the  command  of 
the  laird  of  Claverhouse,  and  did  most  treasona- 
blie and  cruellie  kill  and  murder  some  of  his 
majestic's  souldiers  under  his  command ;  Ly- 
keas  upon  day  of  June  iberailer,  they  did 
i00  ablic  attact^ueandaimultasmall 


paitie  of  his  majesties  forces  within  tbe  toun  of 
Glasgowe,  under  the  command  of  the  lorl 
Rosse  and  laird  of  Claverhouse,  be  whose  pru- 
dence and  government  these  oppin,  nottar  and 
manifest  rebells  wer  repulsed ;  and  yet  being 
incouraged  with  promises  of  levies  of  iheOy 
horse,  money  and  armes,  from  others  of  ther 
treasonable  accomplices,  they  did  swell  and 
growe  to  the  number  often  or  twelve  thousaudy 
and  they,  and  the  persons  above  named,  march- 
ed up  and  down  tlie  countrey,  throwe  the 
sliyres  of  Lanerk,  Aire,  Itenfrewe,  Dumbftrlon 
and  others,  in  warhke  and -military  powster, 
robbing  and  pillageing  his  majestie's  good  sub- 
jects, searchmg  tor  horse,  armes,  powder,  ball, 
and  other  instruments  of  warr,  ^uarterin^  upon 
and  oppressing  his  majestie's  leidges  and  peo- 
ple, and  they  and  their  accomplices  did  main  • 
taine,  supplie,  comfort  and  defend  Mr.  John 
Welsh,  Mr.  Samuel  Arnot,  and  other  fbrfault- 
ed  and  declaired  rebells  for  the  rebellion  1666, 
did  supplie,  shelter,  and  protect  the  impious, 
horrid,  and  sacraletlgious  murderers  of.tbe  lats 
archbishop  of  St.  Androvs,  and  they  and  ther 
accomplices,  to  the  number  of  nyn  or  ten  thou- 
sand, march  towards  Bothwell-bridge  and 
Hamiltoun-muire,  where  they  did  take  the  boM- 
nes  to  issue  proclamations  and  print  declara- 
tions bearing  the  treasonable  grounds  of  ther  re- 
bellion, and  not  content  therwith,  they  and  ther 
rebellious  accomplices  presumed  to  modellthem- 
selves  and  take  the  name  of  ane  army,  formeing 
and  framing  themselves  in  troups,  companys 
and  regiments,  nameingcoUonells  ot'regiments, 
captaines  of  companys,  commanders  of  troups, 
and  other  officers,  under  the  command  of  tlie 
said  liobert  Ilamiitoun,  John  Balfour,  of  Kin- 
loch, the  deceast  Daviil  Hackston  of  Ratbilet, 
and  others,  the  impious  and  bloodie  murderen 
ofthc  late  arch -bishop  of  St.  Andrews  and  they 
and  ther  accoraplices  did  incamp  themselyes  at 
Hamilton-Muir  for  sc vera II  dayes  togitber  in 
June  1(379,  ami  obstinatiie  contmued  in  amwi^ 
makeing  detachments  for  rifleing  and  plunder- 
ing of  the  comitrey  to  make  provision  for  ther 
rebellious  camp,  and  notwithstanding  of  ane 
proclamation  issued  furth  by  our  privie  coun- 
cil I  (Icchiiring  the  sM  insurrection  to  be  ane 
horrid  and  manifc'st  rel^ellion  and  bye  treason, 
and  commanding  these  rebells  to  desist  and  lay 
doun  ther  rebellious  amies,  yet  they  did  most 
treasonablie  continue  and  abyd  in  armes.  ifid 
beat  parlies  he  drum,  and  diJ  take  the  boldnes 
and  pr^un)ption  to  send  ther  commissioners  to 
our  royal  camp,  and  treasonablie  did  requ^rs 
the  subversion  and  overturning  of  the  gt>?em- 
ment  of  the  church  ;  pi-oudhe  and  insolentlia 
boasting  of  ther  trenMuiahle  and  (as  ther  oom- 
missioners  wer  pleased  to  call  thein)  formidaUa 
armes,  in  which  thry  mo^t  treasonablie  con- 
tinued unlill  the  twoniio  second  day  of  tbe  sM 
moneth  of  June  1679;  that  his  ma'ties  finwis 
did  attactque  and  assault  them  at  Bothwel- 
bridge,  wIut  by  (lod's  blissing  on  his  matiea 
armes  and  be  the  valour  and  conduct  of  Jamca 
duke  of  Bucclciigh  and  Monmouth,  his  m^jealiii 
gcnerall,  and  omccrs  and  souldiers  under  him, 


\ 


k 


4lier  ouxDcroys  and  risb«lilou»  ami^  wu^^I'-^t'-^^ 
^ pouted  uud   vaoqitishcd,   uiitl   yvi  {\n 
4<bove  tiatiieti  111  villi'  Hi>(l  i\iivl  itiaiJe  tilt  L    __  ,    , 
they  uiid    \l  iirul  liaeraiegious  inur- 

dtrera  ot  lit'  u  hi^liniMiJ' Sl   Andrews^ 

Oiarclied  in  ]tt&rtie^  and  io  '  uvvslt^r  Up 

mid  doMQ  tltti  eotiiitreyf  in  u  uf  l>uni> 

fiivsy  V\  iafto'jiJ,  Aire,  and  SttwaiUiL'  of  Khk- 
€udhrj;7hr,  f^nwrt*  riT»*»^  iipno  ttfut  opprt'HHMiiT  ||i$ 
ri  ilier 

^  ond 

iifcV    ot    June   i.Lst,  i:  *  jist  Mr, 

Kitcliard  Cumeroti,  li  atidcoti- 

1^.1:        '"--'^  ^    ■.  and 

ie  and  denunce 

>^^  :     sorTt  under  or 

ycalti  ^  and  dill  iiiohI  trea- 

sotiahlo  iilrive  and  dUperse, 

a  HKjst  trcaionablc  paper  cattod  ^^  the  F^inna^ 
licks  Nuvke  t-ovenanl  ;'*  v^hicli  was  tukeo 
from  Mr.  Donald  Cat^dl,  at  Uuiiiiisteiiic^  and 
is  nowf*  printnl  and  pMMisUcd,  aiid  heretA 
hotdrti  ail  r^-pei led »  Rill ^  ^cat 

at  t lie  trii'aiiouahle  atiil  icu- 

fjon  uiiCid  be  Wr,  Donaiu  i  argiii,  iii  ion  wood^ 
ii|H)ti  ilj«        day  of  last,  a^^satuect  the 

li»t  '  "^  - '  ■"■''-  '-  '     -  n  the 

d  ^unaiueii 

,A3i  »..»..v|  -^  sidtft 

Mir  lie*  forces  ^se, 

•Mil        I       .  ailit-lajrd  0      _       _:iLill, 

did  tieji^lu,  resist  and  oppQi^tKetn,  kiiled  and 
woundii  seireral  o(  thcm»  uDlili  at  kji^ih  \hty 
w«r  diwsipat  and  dt  fate,  the  s*d  Mr*  Uitcbard 
Cameron  bcnng'  kU<id  upun  tbe  p^ace,  and 
i>avid  Hacksloun  id'  tUMnletf  and  otbers,  taken 
pnaonemt  In  ducinj^  wlieral  or  ane  or  olber  ol' 
the  a-ds  dtedi^i  the  saidei  John  Wilsoo^  Mr. 
ThoDias  Fdlaus,  and.  tiw  other  persona  abov««^ 
Otnied,  have  c^intuUttd  and  inciirred  the 
crymea  and  paine  of  trrusoa  aUivt?  mentioned, 
Dttd  tre  actors,  aiit  «nd  part  M -^  '  -i  -^ 
l»einfir  found  be  ane  ii&MyHc,  ibr\ 

punixbed  with  brfauJtui  ot'lytJ',  1,^:,., ,  ^  -  ..o^ 

10  ibe  t«?rrDr  of  otheii»  to  couiiuitt  the  like  her- 
cfUr, 

Pcnewer, — Sir  Gmtge  M*Kenzte  of  Hose- 
tiauffh  otir  sovcratgu  lord's  advocat. 

War  rand /or  Advocat  §  io  compcirjbr  the  JJt- 
fendrru 

Thf  1— *    •     '-  '-  -"    Justice  Clfi^ 
and  C  did  aiitli' 

and  ia., ...    ,,,  Lri»  Mr.  >; , - 

Hun  BaiLidlouiJ.  and  ^1  ^Miiiaie,  ad- 

VOCata,  to  cittiKM  Mr  ;a]m!  iuitorr  itri>>  uf 

inch  of  th< 

aball  coiuiMrii 

for  treason  aiid  rcbeUiou  at  tbi«  dyrt. 

ReUls  declared  Fugititti, 

Tbemtid  day  Jolm  Wilson,  wrcitter  in  La- 

nerk^  l^lr.T  le, 

lirrriuer  tbt^i                .i    ^      .  .         ..       u.i^ld 

VOL.  XL 


Si  .^^c-ir,  ther*  Thomas  LauL'hIun  iHcr,  Wdliam 
1,  ^eavur  lher»  fiidroii  VVtlr,  "june* 
ljei\  James  Park,  wtfiivcr  tliei\  John 
humpte,  mason  ther,  Hiiji^h  Ker,  ;ion  lo  W  illiain 
Ker^  in  B^rooald,  Ttiomas  In^lis,  ^lineinaker 
iti  l«anarkf  Itobert  Haddowc  ther,  John 
Buckle,  younger,  mason  and  uvight  thm% 
Alexander  Balyie,  >jniilii  Iher,  Altxander  An* 
dtrson  tber,  Joba  Puitipbray  ther^  Thomai 
HhiMC'Uvood  ther,  John  Jack,  to  Nt-mplder, 
WiLJiDni  Pudzeaii  iher,  Hugh  SomervaiK  of 
Urrats,  John  Hntcheson,  of  Harelawe,  Uo* 
bert  8onierv(iillf  of  Vairdhotise^  Luke  Grein^ 
sbills,  of  lio^^casUe,  Robert  LocklinrU  of 
Btrkiidlf  Gavin  Hamilton,  of  Hi  IK  Jnmes 
>Veir,  ofJohnshill,  Jame?i  vr'^^fl^ »«  •  >  -^*  s-  o- 
rieholiiie,  John  Steiil  in  <  n 

Whytt,  of  Neiik,  John  ll  ,    .  i^    i^  us, 

JuidW  V\  hytt  ther,  Wdliam  Fateouer  in  Ha* 
milton,  Arthnr  Tarbet  ther,  John  Scott, 
younger,  in  Udini^stouu,  James  Canie,  in  Ud> 
In^Moii,  Alexander  Coc^,  his  son,  Jumea 
H^f^'f  son  to  John  iiae,  fevvsir  tlier,  John  Wit* 
kie,  son  to  John  VVilkie,  in  KnoivhvafI,  John 
Scoir,  son  to  John  Scott,  in  Kenmnir,  liobert 
Coisc,  wadsetter  in  Udingston,  John  Thomson, 
son  to  James  Thomson,  portioner  of  Gam- 
quein,  George  Roberrson,  eldar  and  younger, 
of  Kaster  Glenlore^  John  Kussill,  of  Eastfeild, 
Gavin  Weatherspoon,  i'ewar.  In  Heather- 
knowc*,  James  Gray,  elder,  of  Chrystoud, 
John  Easton,  port! oner  of  fiarnquein,  James 
Gray,  of  Berrieknowe,  Walter  Donahlson,  por- 
tion it  of  RalHestoiin,  Mr.  John  8preuU,  wreit*' 
er  ii!  Glasgfowe,  Gadn  Wood^  wriirht  Iher, 
Robert  Goodwin,  mahman  ther»  Jaijies  f -un- 
iti^hani,  mcrchnnd  ther,  Isack  litackiveli, 
son  to  Thomas  Blackweil,  calendar  thrr^ 
John  GoTan,  portioner  of  Shetlestfiun,  Wiiltam 
Ridilell,  fewar  and  mason  in  Rii(btreleti« 
John  Brown,  t  ay  J  or  and  fewar  tht*r^  Uu^i 
Kcr,    *#f    Boi^liouse,    Robert    Fk\  .f 

Auchinfiae,  William  Park,    fevfai  j, 

I   t..    ij-,^,jj^^j^^  fewar  of  Rocertouti,     i  iimnas 
var  of  Jatkloon,  John  Millar^  yoting"- 


ran,  ot    Craijf,  John 
'  ..  :  litippeii,  ThoHMi^  Le- 

per,   pomoner  of  FeiUIUead,  Jatnes   Dykm, 
portioner  of  Halbume,  Johti  Carodnrt',  fewar 
lU  Straven,    Ritbard    Meikle,  in    Tweihesyd, 
Thomas  Palton,  at  the  Old  Kirkof  Cnnibu^ne- 
.  John  Ciray,  of  Darngafill,  It 
ain,  John    Whitlawe,  in  Rotli 
J<tiH>  Paterson,  ther,  VVilham  War<hoi>it ,  |M»r*  j 
lioour  iif  Eaater  Calderliead,  John  Catberhead^J 
'ii^'er,    portioner    of    W  indie- tdge,    John 
:t,  younger,    of   Stockbridjfcs,    Tltonjai 
*..;.v^  of  Blairrcckonin^,   William   Dykes,  of 
I.*aiiibhill»  Gavin  Stuiple,   portioner  of  Kirk- 
wootl,  Thoina«  Bro^valie,  |M»rtioiier  otTuritsl^.i 
James    Aikenhead,     in     Kittocbayd*    Ja 
Dykes  ther,  John  Grainger,    of   Fla 
J^i'kn  Watt,  ther,  John  Weir  ^f  Strang 
ThotoM  Uobeiisou,    portiObar  ot  ilu 


859] 


53  CHARLES  II.     ProceetUngi  ggmmd  the  Lanerkskire  Men,     [SGO 


Joho  Haddodr,  in  fiMteraeil,  bcnig  «ftjiiMli 
called  to  liaTe  eompeired  befor  the  Lonia  oom- 
niissioiim  of  jiiMioku-y  tbia  day  and  placi>,  in 
the  hour  of  cante  to  haf  e  undarlycn  the  lawa 
for  the  crvmca  of  hye  treason  and  rebdiion, 
comniitteff  be  them  in  comimif  ^  ^  burghe 
of  Ruthergien,  upon  the  twentieftynth  day  of 
May,  1679.  and  proclaimiBgr  «cta  of  tberown 
coyoibg  at  the  maroatcrocetbefof,  and  drown- 
int^  out  bouefirea,  aett  on  in  commemoration 
of  hia  majestie**  bappie  rcatauration  to  the 
royal  government  of  this  kingdom,  asaaoltin^ 
and  attactquinir  a  pertie  of  his  majeatie's  forces 
at  Loudounhil),  under  the  command  of  the 
Jaird  of  ClaTerhouae,  Iciilinfir  and  murdering 
eererall  of  his  majesties  souMiera  then  march- 
tngr  to  thebar^h  of  Otasgovre,  and  atUcoiieing 
a  partie  of  his  majestie's  forces  within  the 
same,  under  the  compnand  of  the  lord  Rosse 
and  laird  of  Claverhousc,  marchiilg  up  and 
doun  the  country  with  the  murderers  of  the 
late  archbishop  of  8t.  Andrews,  and  others 
ther  accomplices,  to  the  number  of  nyn  or  ten 
thousand,  quarterin^^  upon  and  oppressing  his 
majestio's  good  leiges  and  people,  robbing  and 
rifieing  ther  goods  and  houses,  publishing  and 
]irinting  the  treasonable  grounds  of  ther  rebel- 
lion, beating  parlies  be  drums,  sending  ther 
commissioners  to  the  royal  camp,  treasonably 
requireing  the  subversion  of  the  government  of 
the  Church,  resistiog  feighting  and  oppose- 
ing  his  majestie's  forces  at  Bothwelbridge, 
nnder  the  command  of  the  duke  of  Buccleugh 
and  Monmouth,*  untill  the  saids  rebells  were 


*  Of  the  procedure  of  Monmouth  against 
the  Scots  insurgents,  Algernon  Sidney  in  sue* 
cessivc  letters  writes  thus : 

**  No  man  doubts  of  the  truth  of  the  news 
brougrht  hither  by  an  cxnrcss  on  Saturday 
morning ;  which  is,  that  the  conventicle- men 
hi  the  county  of  Glasgow  are  in  arms ;  that 
one  captain  Grimes  coming  something  t(K> 
near  them,  with  his  troop  ana  other  forces,  was 
beaten  back,  with  the  loss  of  his  comet  and 
Iburteen  troopers;  which  according  to  the 
posture  he  found  them  in,  he  was  persuaded  to 
content  hiniKelf  with,  rather  than  to  press -far- 
dier.  Tlif*.  council  was  called  upon  this  oc- 
casion on  Saturday  last,  but  nothing  (as  1  hear) 
resolved  until  they  hear  more,  some  doubling 
whether  it  he  a  laid  business,  or  a  snddcft 
tumult  raised  by  accident.  1  know  not  the 
truth  of  this,  but  the  discem^es  I  have  heard 
▼ery  often  of  late,  of  those  who  every  day  ex- 
pected some  such  thin^,  persuades  me  to  be- 
tieve  it  is  not  fallen  out  by  chance.  Thouvb 
no  resohirion  wna  taken  at  council  npon  this 
matter,  it  is  said,  that  private  onlers  are  given 
fHit  to  several  officers  of  the  late  disbimded 
troops,  to  get  their  men  again  together ;  and 
to  others,  upon  the  roosi  plausible  pretences 
that  they  can  invent,  to  delay  their  disbanding 
These  ampicions  go  too 
h  some  of  your  friends 
i  degree,  that  eomnellortare 
■  tebe^BDged  than  ooiuali;  and 
ft 


defate,  and  eommittingditaevenllctlier  aoli 
and  deeds  of  bye  treason  and  rebcUioB,  at 
leiiffth  mentioned  in  the  criminal  lelteni  raMI 
at  nis  Majestio's   advocate  instance  against 


•nai  iney  can  mveni,  io 
M  mud  as  may  be.    1 
Ihr,  and  already  reach 
and  BUM,  toauch  a  dcgi 


if  they  do  not  find  a  way  to  core  that  aoie,  at 
the  next  meeting  of  pariiament,  they  will  he 
looked  on  as  their  predecesaors.  If  nothing 
from  Seotlaod  hinden,  the  oonrt  will  go  te 
Windsor  to-morrow.*' 

**  The  Scotch  news  that  I  mentioned  te  jon 
last  week,  doth  still  possess  the  minds  of  all 
men  here ;  but  all  relations  that  come  from 
Scotland  arc  so  impel  feet,  that  no  man  knowa 
what  to  make  of  tnem  ;  and  those  that  cooM 
to  court  being  more  particularly  so  than  otherir, 
no  men  are  thought  to  understand  less  of  A# 
business  than  privy  counsellors.  This  is  at- 
triboied  to  Latnenkile ;  and  thoogh  it  be  ooa* 
clude<l,  that  what  he  says  is  not  true,  eome 
think  the  business  i^orse,  others  better,  than  it 
is  represented.  The  fact,  as  far  as  I  hear,  is^ 
that  the  earl  of  Lithco  with  above  five,  and 
twenty  hundred  horse  and  foot  did  come  withiB 
a  few  miles  of  the  conventicle- men,  and  find- 
ing them  in  such  a  posture,  as  he  did  not  think 
it  prudent  to  chaige  them,  he  concluded  the 
best  was  to  let  thciu  take  Glasgow,  where  they 
are  said  to  have  found  good  store  of  arms,  am- 
munition and  some  cannon,  and  having  left  ao 
many  men  in  the  town  as  are  thought  sufficient 
to  guard  it,  they  march  with  four  pieces.  Tliej 
are  said  to  encrease  in  number  every  day,  hm 
we  know  nothing  of  them  certainly,  unlen  it 
be  that  they  have  no  landed  men  amongfll 
tliem,  nor  any  gentlemen,  but  a  younger  bro<- 
ther  to  a  knight  of  the  Hamilton  family.  The 
last  week  we  heard  of  nothing  but  raising  ef 
great  forces  to  subdue  these  rebels.  The  doketf 
of  Monmouth,  Albemarle,  and  lord  Ganel 
were  to  have  regiments  of  horse,  Feversbam 
one  of  dragoons  and  grenadiers,  the  lord 
Cavendish,  GreyofWerk,  Mr.  T.  Thynne,  and 
some  others,  regiments  of  foot ;  but  thM  bent 
seems  to  be  something  abated.  The  lord  Gr^ 
gave  up  his  commission,  Mr.  Thynne  refhaei 
to  take  any ;  Cavendisli  doth  not  raise  anj 
men  upon  his,  and  Garret  swcaiii  he  will  net 
be  at  a  penny  charge  to  raise  a  man,  but  if  the 
commissioners  for  the  treasury  >vill  raise  lua 
a  regiment,  and  provide  money  to  pay  it,  be 
will  command  it.  W  hilst  ways  were  sought  6 
remove  these  difficulties,  the  Scotch  lords  that 
are  hereeudoavom-eHto  pei'suadethem  that  the 
business  may  be  euded  by  far  more  ccrlun  and 
leas  chargeable  vays,  in  a^  much  as  these  mca 
having  been  driven  into  a  necessity  of  takinj| 
arms,  oy  the  extreme  prcs&iire  suffered  fnua 
those  that  did  aburo  the  aiithcrily  his  majeatV 
had  trusted  t!iem  with,  the  people  being  eaana 
of  those  burthc'ns,  the  pLTSons  removed  tlial 
had  caused  t]u:ri!,  9w\  sacli  men  placed  *iA 
the  goveniment,  as  wjie  rxcq>tabic  to  thn 
nation,  th^?y  durst  undertake  rliat  all  mi^ 
be  composed  without  blooil.  This  was  not 
(as  I  hear)  disliked,  but  auotbet*  point  wttk- 
alaited,  that  doth  yet  more  incliac  the  eoart1§ 


iheiQf  ihfir  anmt  as  ihey  tvho  wf^r  iawfuUie  |  thor  ^p|>(.i 
filed  be  CI«org«  O^Llhie,  Albany  lierauiilt  hy  \  mn\  \iW\ 
•OOod  of  trit'T*"  "♦    ^*.'iih    ilr^pluyetl   coat,  nr--'     i.... -i,., 
•liicr  ■ohnuL  >^it  to  havi.^  touwJ  cair 

■nd  soverlit;  *i..v»  *..  J.^  books  of  adjourna 


mild  coime*  i  wluoh  la  in  the  year  lAll  act* 
at'  p4irliajiie&t  were  made  tn  botli  kint^^iiomt, 
MHcing  ittrcttaop  fov  iny  pei'soo  beioa^iog 
unto  ^ther  to  make  wnr  upoa  or  iiivude  liie 
<»ibert  wiUiout  I  lie  cotiiteut  f»f  pariiatneuU 
And  ihovigh  Qoe  or  two  of  tkr  judges  aay, 
tbfti  tlia  acU  bring  rccipruciti,  ihe  8coIb 
httving  resotiided  lUrirfl,  outs  f /'  >  '  T 
«r  thougb  il  did  qcH,  Uie  act 
invasian,  no  vi^ays  louclielh  suco  i^  irv  ^^^c 
llJttg's  command  tdiould  li^o  to  subdiit^  rebels ; 
iAben  my,  that  whut  the  Beats  did  niighl 
Ui4eid  gtre  unto  the  parliutuent  of  £n^laDd 
ft  juil  jB^rouod  (t(  aiiouiini)<  iheir  act  aJ^o,  but 
not  having  done  tt^  no  intin  can  doubt  but  U. 
pemajiis  in  force  ;  and  wJiosoever  marchetb 
•gaiuBl  ScotUnii  incurs  tite  penalti^  of  treg- 
flon  denounced  tiv  it.  And  home  that  were 
pretent  i>t  tbe  nrnkiii^  iif  il,  are  so  far  froin 
approving  tb«  distin^iosi  lMwt«a  invadiu;;^  ^uid 
subduing  rebeia  at  to  nay,  thai  ibc  parliament 
Ibexi  fmdingtliey  bad  l^en  upon  the  like  pre- 
tcnoe  eagi^ped  against  Hootliind  in  16^8  and 
3tf,  madetbiiftslttpicsaly  to  binder  any  sueb 
bqaJBgaa  ii  lliat  vhioli  tn  im>w  dept^odin^f  ;  tmd 
lo  lake  oarti  that  England  ibonld  urvur  be 
tgiiB  engaged  againat  fikotland,  without  the 
tfiomt  of  the  parUaaiflQt;  wbich  was  also  tht! 
niflMiwtiy  the  act  was  eooliJiQed  in  ioYce  on 
our  aide,  tliougli  it  was  divoWed  ou  tbeit^. 
Thia  rendeiw  men  of  eatAtaa  uawiUiag  to  en- 
gage  j  aad  hereupoa  the  duke  oi^  Muomoutli 
wai  a^ai  aaray  yeaterday  in  isueh  hasle,  aa  to 
carry  no  more eompony  with  biin,  tbau  could 
go  in  MM  day  te  your  good  town  of  Newark^ 
wbcrabewaa  to  lodge  the  last  nigbt  Heia 
lumished  with  powers  of  indutffenca  lo  com- 
poae  rather  than  destroy  ;  and  the  lord  Mel- 
via  (wbo  ifi  thought  well  enough  inclined 
to  non^^eoal^riiiiats,  and  well  bkod  by  tbem) 
ia  aent  with  btmt  as  being  thought  a  fit 
miptMiir  of  a  good  agreement.  Tiw?  fou>i  that 
¥fw»  caaberked  in  Ihe  Ttiarues  is  gone  i*tt  lu*r- 
wick,  where  it  ia  Ut  Ktay  to  serurt)  the  ton  n« 
and  tho  other  fore<«,  thatare  uewly  efltertai|ied| 
are  to  continue  only  lor  a  mouth.  This  iooki 
as  if  your  frit^tid  Laiherdale  may  within  a 
while  bt:lel\  aaindted  as  the  carl  of  Danby. 
HiAsaiDir  is  almost  every  where  dishanded, 
oniastlue  these  that  ufion  this  ooossion  iu« 
agsin  takoi  into  pay,  and  the  enuniries  almost 
every  whme  express  Ihe  u^aost  haired  lyala 
theoi,  as  soon  ns  ihejr  have  laid  down  their 
aroBSi.  IlotiglBfl*s  rsgimenl  now  iu  Ireland^  as 
ia  said*  hath  ordfta  to  maidi  inl»  bcotlaud« 
which  giving  {leopli!  nonsioii  l«»  lalik  of  ibai 
country. they  say  that  the  king  hating  lately 
plaisad  me  gfaalesl  powem  ia  Uie  tbr<ie  kingf 
deess  in  the  hands  ii'  tk»  three  worst  men  that 
eould  be  tutiud  in  tlieia,  can  oever  he  11  laisa 
oatii  Ihey  arc  nil  sacritiocdf  la  sjcpiale  Ihe 


TMr  Ihe  saidt  IorJt*t?^F^ 
r  of  cause»  to  il 

•  I  fir  nou  of  Uiem 

.w-,-u....  i,  Ueuemll^ Justice 


faults  of  the  jcroverament,  and  appease  tlie  dts^ 
conteutii  of  the  nation. 

'*  I  told  you  in  my  last,  that  tlie  duke  of 
Han''  :  gone  towards  8cotbtid,  since 

wbn  :,  ,  i»rt«  bare  been  so  various,  thai 

no  nvMi  ^^  t'A  kimwff  what  to  make  of  llml  bust- 
nesfi  ;  luid  the  ca use  of  t hi !3  uncertainly  is  impute 

':     '  i  thekinM'*so^ersi,who  iir 

k'tisrs  directed  unto  person 

1 


lh•^n  they  think 

here  '">  ^«t>»i 

btou: 

thcTi 

with 

that  o  V 


.  and  as  much  honour,  as  ttio^e 
>  I  ould  shew  unlo  hint  ;  that  the 
oouiKnl  lia%aii;beenimj|ie(liaiely  calieil,  be  ex« 
posed  unto  litem  bis  oomtuinaion,  which  was 
very  well  Itkud  ;  that  the  chancellor  invited 
him  Ut  supper  thai  niglit,  snd  that  he  was  the 
next  morning  to  go  to  the  srmy»  having  tirsl 
sent  an  express  19  the  lord  litfico,  that  com* 
[nauds  it^  no  ways  to  engage  in  any  action 
before  he  corpes.  Soqae  tJiutik  that  be  both 
the  convontiri^-iueD  at  an  advantsge,  and  will 
pursue  it  to  their  destrucljou.  Others  fiay» 
that  u[M»n  the  extreme  avemon  that  is  !ihe%vn  hU 
over  England  to  a  war  in  Scotland »  and  tho 
tittle  prub;ibilil)  yet  ^ippei&ring  of  the  pai  JijL%  , 
meat's  being  atiy  ways  ^gMgeshle  in  it, 
hath  reoeiveil  much  miirt^  k;cutle  instruction^ 
and  tnttuds  by  the  li  lard  Mrlvin,  1 

compose  thoiie  basin •  cau ;  ^md  If 

can  accomplish  it,  w  i  '  \  rondrr  hiiu^elf 

very  popular  iu  Kng!  c(>tland.'" 

**  The  duk^  ll^iuiUuu  and  sooie  other 
Scotch  lords  having  let  his  majesty  know  that 
the  disorders  in  Scotland  proceeded  only  front 
the  ejttieine  presiiuri^^  the  people  were  brou^hl 
under,  by  ih^^e  who,  contrary  to  law»  abuseil 
tike  (>Quer  his  maji>vty  had  trusted  them  with, 
did  undtrtake  to  hutkik  uU  without  bh^"^  'i  <'i>| 
would  be  pleaiied  Ut  eas^*  them  of  i 
&urt*8,  and,  retuobing  those  who  hviu  v,.,,^,4J 
them,  put  the  goveruuieut  ol  th#  kingdom  inl(_ 
Uie  hsuds  of  such  pcrfions  as  w^e  w^llf 
t^lstksing  unto  the  nation.  This  having  b<i^ 
taken  imo  consideraiion  for  eouic  days,  tli, 
duke  HumihiHi  witli  llm  re^*  «ml  one  l./ockr 
hart,  were  se^it  for  by  the  kiogi  whoto^d  th«;iiif 
the  points  fortuerly  spoken  of  did  irlaio  uuti 
his  prerogative,  which  in  thrre  points  he  wuuL 
nolsuirerto  bt^  ttiuchcd  '.  l«l.  Thai  1  ' 
a  right  of  disposmg  of  all  placcri^,  in 
^kscitaie  such  peiiM>ns  aa  he  should  uiiim 
2dty,  That  it  belonging  to  him  to  prrvt^ul 
conspiracies,  he  might  bectn^^  im'I  •<■ 
aim  sus^teid  persons ;  and  (h 
au^h  thing  us  a  Habeas  Corpus  r  i 

shpiiM  he  AS  long  as  he  lived  t 

biiog  hii  j[4ut  iu  pmvcut  ur  to 


S6S] 


S3  CHARLES  II.      Proceedings  ag^mt  ike  lunurkshire  Men,      [2G4 


Clerk,  and  Comnaissioners  of  Justiciary  ther- 
for,  be  tlie  moulh  of  James  HearysoD,  macer 
of  court,  decerned  and  adjudged  them,  and  ilk 
«ne  of  them  to  be  outlaw  a  and  fugitives  free 

he  might  raise  such  forces  as  lie  pleased, 
quarter  them  where  he  thought  iit,  and  em- 
ploy them  as  occasion  should  require.  To 
ivhich  Lockhart  replied,  that  the  places  in 
question  were  those  belonging  to  counties  and 
corporations,  which  had  ever  been  chosen  by 
the  people  respectively  according  to  their 
charters.  And  as  to  what  concerns  conspi- 
racies and  rebellions,  he  thought  he  could 
prove,  that  what  his  majesty  did  assert  did 
neither  agree  with  the  laws  of  Scotland,  nor 
any  other  law,  nor  the  ends  for  which  that, 
or  any  other  government  was  constituted. 

*'  The  next  point  in  discourse  was  concern- 
ing some  articles  exhibited  against  Latherdale ; 
in  which  it  is  said,  that'*  his  majesty  for  se- 
veral years  passed  had  been  utterly  misin- 
fomieil,  and  never  known  the  truth  of  any 
thin;;:  relating  nnto  Scotland,  hut  been  guided 
by  such  reports  as  best  suited  with  Lathcr- 
ilale's  interests."  That  he  had  been  thereby 
induced  to  bring  down  the  last  year  that  army 
of  barliarous  highlanders,  upon  pretence  (»f  mu- 
tinous and  seditious  field-conventicles  ;  whereas 
such  meetings  as  had  been,  were  modest  and 
quiet ;  and  quartered  them  in  those  countries 
where  there  never  bad  been  any  at  all.  Se- 
veral other  misdemeanors  are  said  to  be  men- 
tioned, and  amongst  others  tbot  of  Michell,  who 
liad  been  put  to  death  atler  having  had  a  pro- 
mise of  h'te  and  limb,  by  false  oaths  made  by 
Latherdale  and  some  others  of  the  privy  coun- 
cil. The  conclusion  was,  the  kiiicf  commanded 
the  duke,  that  these  articles  should  not  be  made 
|fublic.  In  which  he  excused  himself,  foras- 
much as  having  done  nothing  in  the  dark, 
several  copies  had  been  taken,  which  were 
not  in  his  power.  Some  say,  we  shall  this  day 
see  them  in  print,  with  the  declaration  of  the 
<:oiivcnticle-mcn,  printed  at  Glasgow,  which 
is  very  well  worth  seeing.  The  forces  of 
these  conventicle -men,  or  as  they  call  thcm- 
selvesjthc  western  army,  are  variously  reported. 
Bofiiesay,  they  havo  14,000  or  15,000  men  ; 
others,  that  this  day  was  a  sennight  they  had, 
not  far  from  Sterling,  between  two  and  three 
thousand  horse,  well  armed  and  mounted, 
with  about  the  like  number  of  foot ;  that  a 
brother  of  the  earl  of  Galloway  was  coming  to 
them,  and  within  three  hours  march,  with 
above  four  hundred  horse  and  foot,  and  that 
they  had  parties  oi*  good  strength  in  several 
other  places. *' 

"  A  Courierarrivcdthe  last  night  from  Scot- 
land, who  brings  word,  that  the  duke  of  Mon- 
mouth had  attacked  the  conventicle-men,  and 
easily  forcing  a  little  barricado  thry  had  made 
to  defend  a  bridge,  had  utterly  defeated  them. 
Some  letters  say,  two  thousand  are  killed  lipoo 
tiM  place ;  but  ny  lord  Sunderland  tells  me 
4liere  is  only  some  hundreds  slain,  many  taken, 
#sd  ilia  whole  party  dissipated  and  .destroyed ; 


his  majcstie's  lawes,  and  ordained  them  to  be 
putt  to  his  highnes  home,  all  ther  movable 
goods  and  gear  to  be  escheat  and  inbrought  tar 
our  soveraigne  lord's  use  for  ther  contemptioo 

bv  which  means  it  is  said,  that  the  duke  of 
Alonmouth  will  have  made  himself  as  popular 
in  England  and  Scotland  as  the  duke  of  York. 
Men  here  will  be  startled  at  present,  but  that 
will  not  hold.  The  Scotch  lords  here  have 
been  so  wise  as  to  leave  their  countrymen  to  be 
cut  in  pieces,  but  (as  some  believe)  not  enough 
to  keep  themselves  so  free  from  corresponding 
with  tliem,  as  not  to  leave  that,  which  being 
well  followed  may  bring  their  heads  to  the 
block." 

**  The  news  concerning  the  Scots,  mentiooed 
in  my  last,  is  oon6rmed  by  several  exprenee, 
and  all  shew  their  defeat  to  have  been  entire, 
the  party  dissipated,  and  tlioce  who  escaped  the 
fury  of  the  sword  remain  exposed  to  the  dis- 
cretion of  their  conquerors.  1  iind  men's  judg- 
ments as  various,  as  to  the  nse  which  will  be 
made  of  this  advantage,  as  of  the  dnke  of 
Monmouth's  action  in  what  is  passed.  Some 
did  tliink  that  they  being  a  poor  people,  brought 
into  despair  by  tiie  most  violent  peraecutiOD, 

Eitied  by  all  both  in  England  and  Scotland, 
clped  by  none,  without  head  or  conduclff  wers 
to  be  spared ;  and  that  in  doing  so,  he  might 
have  made  himself  very  popular  in  both  king- 
doms, (which  he  is  thought  with  reason  muoh 
to  desire)  and  best  to  have  provided  for  the 
king's  interest.  Others,  who  look  upon  it  as  a 
fine  thing  to  kill  a  great  many  men,  and  believe 
monarchies  arc  b^  kept  up  by  terror,  extol 
the  action,  and  say  tliere  is  no  other  way  of 
suppressing  oM  rebellions,  or  preventing-  new 
ones,  than  by  force  and  rigour  ;  looking  upon 
Caligula  as  a  great  statesman,  and  odfrint  dwm 
metuant  as  a  good  maxim.  Some  think  tint 
the  duke  of  Monnioiitirs  first  instructions  were 
according  to  the  first  of  these  ways,  hut  that  he 
\\as  followed  by  others,  which  savoured  muoh 
of  the  second  ;  those  that  were  of  tlie  first  opi« 
niou,  do  now  think  the  best  way  were  to  com- 
pose tiling  there,  and  by  shewing  indulgcooe 
not  only  in  sparing  those  that  are  oboozMMn, 
but  in  giving  them  such  indulgence  in  mattcn 
of  c<>n!«cience,  as  may  satisfy  them,  prevent  die 
like,  and  please  the  iKnly  ofthe  Enttiish  nr'^~~ 
which  hath  given  many  tokens  of  being  l 
concerned  for  tiiem.  On  the  other  side,  1 
are  not  wanting  who  think  the  best  way  to 
bring  that  stubborn  people  into  /subjection,  and 
keep  them,  as  they  call  it,  in  peace,  free  fran 
rebellions,  is  lo  use  the  utmost  rigour  upiB 
those  that  are  in  their  power,  and  to  diseaver 
who  did  in  any  measure  assist  or  abet  tben ; 
and  in  order  tirereiinto  the  prisoners  ar&  used 
most  cruelly,  and  it  is  said,  that  at  the  loask 
forty  of  the  most  noted  men  amongst  ^theat 
shall  be  put  into  the  bouts  my  lord  of  Latherdale 
hath  brought  into  fashion,  to  make  them  dis- 
cover what  correspondence  the  great  bmo 
held  with  them.  1  know  not  how  &  thia  may 
coooeni  some  tbat  are,  or  ktely  hare  I 


«ei5! 


«TV(J  iljsr*  - '-  "^-^^  wliicU  WM  prrmuncrd  for 
tkoui.  L*o1luck,  Kuiilht  ui  Hnmilton, 

JoUo  Al.i,..  , ,  ...  iiVaursliuui^li;  ilixMn  Hamil- 
ton, of  Meadowcs  ^It'iiii  fit  ay,  son  to  James 
Omy  4l<iei\  i»f  CUry^Uiiin  ;  iuh\  John  HprciiU, 
BfijitUh^cnry  it»  (iliistr«^v<?,  "wiio  are  c«»utairved 
in  tlic-  lybt-fl,  WW  r»i»l  t'H^*ii,  tl^e  said  Juhn  Grny 
was  allijudged  ti»  bo  di'itd,  atid  Johit  Sjjreull  bi^- 
^u^  a  (iristitif  1',  was  continued  till  tlie  eexl  oi' 
iuoe. 

Dyet  coutinu(!(i  till  the  17tU  tDsl. 
17M  jUarcA.  lOBl. 

The  Wlid  day  rompeii'ed  G«irjfe  Og:ilhie, 
Albany  hrratild  ;  John  Uoodiiib»,  Robert  Lee- 
kie,  WiHiiiiii  Rcid,  John  ScoU,  and  James 
Smith,  wiiiit^^^'s,  ihHTl  in  his  execution,  und 
made  fhith  uf»on  the  triilh  and  teritit*  oflhe 
r^.'.  iiii.iM  oil..  1,  if)  !.^riiii.i>,t  the  rebdl  heritors 
ilk  ts. 

1  ik  instruments  ufiOQ 

produelum  aud  venticauun  of  the  executions, 
and  thai  the  letti?rs  %ver  exccut  aifaiuesl  ihu  de- 
fenders at  the  marcat  crocc  of  Edinhurj^h  peir, 
iuid  «hore  of  Leith,  u|Km  thri^Kcurcdavei  warn- 
ings and  at  thcr  d%velhng-hotsbeSf  and  th^  mar- 
cat  cros<*s  of  tiie  headburi^hs  of  the  shyie, 

hut  it  is  urobahle  enougli  they  may  have  the 
fortune  that  ordinarily  nccompaniex  thifni  that 
prelendiu;;^  Uylni  very  Bubtilu  und  keep  well  with 
both  KidcA,  eier  to  do  Uwi  riiuch  or  tiio  little  ; 
aiid  that  whereas  they  might  have  prevented 
fill  tntnitlts,  if  i\wy  had  codeavourcd  it,  by 
deiiyiog"  all  manner  of  favour  to  the  diseon- 
t<^nted  people  ;  or  reformed  the  state  of  that 
Itingdom,  if  they  would  have  taken  the  cod^ 
duct  of  tlieni,  and  very  well  provided  for  their 
ovvn  intenst  by  either  way,  raay  have  ruiued 
these  p«>or  people  by  stirripi;  them  up,  and 
leaving  them  to  ihemsclves ;  brought  tlie  whole 
tiaiioD  under  the  poiver  of  tbcir  enemy^  and 
given  such  advantages  arraitist  themielves,  as 
may  be  their  ruin,  if  they  are  pun»ue<l ;  that 
iSf  to  perish  or  be  saved  by  the  mert-y  of  him 
they  [irtite«»  to  abhor,  Iluke  Hamilton  com- 
plains he  is  ruined  hy  thi.^  business,  and  that 
not  only  all  the  prtivisions  of  victuals  and 
corn  and  crnuis  upon  tlie  g^round  is  destroyed, 
hut  that  there  is  not  a  cow,  one  horse  or  sheep 
leH  ujkon  liis  whole  estate;  and  hijs  own  house 
had  been  plundered,  if  the  duke  of  Montuoiilh 
hail  not  sent  an  o^ieer  to  pretierve  it.  But 
Xallierdih;  aayt » he  cannot  U  lieve  that  Hamil- 
ioit*t  fHcndai  tenants,  and  servants,  would  so 
fat  forget  their  depetidenfe,  oUliguiiouii  and 
MkI  oianueTs^  u  to  deal  uncivdly   wiih    him. 


dlewailric,  regal itie  and  other  jurisdictmu  whcr  « 
they  live,  upon  Jbnrlie  dayes  by  a  heraul(t' 
with  dis)»fayed  coat  of  urines  una  by  ^und  uf  ] 
(rmnpet,  having  :ind  aifixjno'  at  the  saids  i^. 
BipeiUive  places  lull  doubles  of  the  letters,  won 
be  word,  with  lists  of  the  haill  assyscrs  and 
witnt^ses  names  lo  be  adduced  againest  the  de«, 
J'enderSf  and  uiteiog  the  other  solemoiliei»  re<^. 
quisit. 

Mr.  David  Thorit^  fo?  Gavin  Hamilton,  of 
Hill,  ane  of  the  defenders  mentioned  in  the! 
criminall  letters  raised  a^'t  the  rebell  heritor^.] 
in  Lanerkshyre,  alleadifcs,  that  he  cj*nnot  b^ 
d  eel  aired  fugitive  ujion  theexeculion  producefL 
because  being  pn">oner  within  the  Tolbtjiib  i 
Edinburgh*  and  for  fourlie  dayes  betbr  hi|| 
ou;^ht  to  have  bein  cited  at  the  Tolbuith  an  ' 
perionallie. 

1.  Takes  instruments  upon  the  executtOQg 
which  bears  only  dwelling  house  in  generall^ana 
upon  the  lierauld  executer  his  judjciall  rlcclitra-^ 
Liofk,  that  be  did  cite  him  only  at  hts  duellini*^ 
house  of  Hill,  and  it  is  denyed,  thai  lb f  sail 
Gavin  or  his  faiiiilie  lived  ther  the  tyme  of  lb 
citation,  but  that  then  and  for  a  verie  lonsidf 
rablc  tyme  befor  bis  wylf  and  familie  lived  i 
8traven,  which  is  offered  to  be  proven. 


Jmh  a«  arr. 

itiuil  a';  - 
the  ill 

»  those  w  ho  Jnanaye  hu»i- 
^^itively  of  them,  but  1 
•  rid  my  jiidernienl,  until 
lit  cotne%  hark,  which  is 

expert 
**  It 
tnuk. 

»u  ihd  not  know  what  to 
-'t^in.ijit  belbre  you   had 

^ou  weroas  much 


you  understand  that  which  I  am  ignorant  of ; 
and  to  say  the  truth,  I  am  so  ;  a  ^reat  part  of 
our  mO(iem  prudence  heini;  to  suppress  in- 
formations of  the  truth,  which  I  take  to  be  as 
f:reat  a  point  of  subtility  as  that  of  one  of  our 
friends^  who  €0i3cealed'a  ujisfortune  befallen 
him  in  the  first  acquaintance  be  had  with  a 
woman,  until  he  was  Uke  to  fnll  into  pieces. 
Some  thiuk  the  great  lords  will  be  found  to 
have  incited  the  poor  people,  aad  then  endea- 
voured to  value  themselvi^s  at  coart  upon  the 
power  they  had  of  appeasing  them  ;  and  if 
that  prove  true,  they  may  have  the  fortune 
that  ordinarily  accompanies  those  that  do  too 
much  or  too  Tittle,  and  ray  lord  Laiherdale*s 
boots  will  be  o  powerful  means  of  di covering 
whether  this  be  so  or  no.'* 

**  The  duke  of  Monmouth,  before  he  canoe 
from  Scotland,  had  taken  care  that  the  Scotch 
prisoners  should  be  used  with  more  humanity 
than  they  found  amongvt  their  (^^untrymeo, 
and  »inc4^,  hi^  arriv  al  here,  orders  are  sent  to 
cnlat^e  the  indulj^cnce  granU^d  unto  the  non- 
conformists in  their  tneeiinjLf<j.  The  result  of 
(hat  business,  as  far  as  I  understand  it,  is,  a 
great  many  fools  have  hern  killed  ;  tlieir  blood 
uef  upon  Lathcrdafc ;  their  folly  and  the 
cruelty  shewed  iitito  thein  hath  guineda  preat 
dedl  of  rompasMon  for  those  that  remain  of 
their  party,  which  prol>ably  will  persuade  those 
in  auluoriiy  here  to  proceed  more  gently  |  and 
that  which  is  rea!.onable  in  iuelf,  will  be  ren- 
derfd  alisolutely  noceasary,  if  the  parlianietit 
be  tiufieied  tu  Hit ;  for  unless  they  prot e  to  bf 
of  a  temper  very  ditfereot  from  what  is  ejc- 
pccteil,  they  will  suffer  uotbing  tike  unto  d»ai 
which  hath  beya,'' 


967]  53  CHARLES  II.      Procudingi  agmmH  th  Lgnerkikire  Men,      [fGB 

Tf>cai*  beiD^  warrandit  by  the  lords  of  his 
majestie's  pnvie  counciil  or  thcsaorie  to  per* 
■ewe  tlie  iMmnaUs,  he  is  not  obleiilffed  to  cud« 
deaceofl  upon  ane  informer,  and  mod  that  he 

*  Mr.  Hume,  in  different  parts  of  bis  Coin- 
mentariss,  treats  copiously  of  the  powers  and 
duties  of  the  king's  adfocate.  The  l61lowip§^ 
pa8sa|re  will  furnish  some  insight  into  tbe  His- 
tory of  the  proceedin<^8  of  that  officer  as  publie 
accuser. 

*'  Let  us  now  attend  to  the  circumstances  of 
a  prosecution  at  instance  of  the  lord  AdTOcate, 
the  public  accuser,  who  insists  in  the  name  of 
the  king,  and  for  his  majesty'a  interest  w  the 
execution  of  his  laws,  and  in  the  tranoiiiUitT 
and  wiiUare  of  his  people.  This  office,  tLougtt 
it  probably  existed  at  an  earlier  period,  io  not 
however,  inuch  taken  notice  of  before  the  be- 
ginning of  the  laih  century  ;  and  the  com« 
mou  account  is,  that  it  was  first  raised  to  its 
present  high  privilege  with  respect  to  the  pro- 
secution of  crimes,  by  the  stat.  1587,  c.  77| 
which  dechurcs  **  Tiiat  the  thesaurer  and  ad- 
vocate iMirsew  slaughters  and  utheris  crimesi 
althaucbt  the  parties  be  silent,  or  wald  uther- 
waycs  privily  agree."    But,  that  this  is  dqI 

J|uite  an  accurate  stale  of  the  case,  may  be  ia- 
erred  from  a  former  statute,  1579,  c.  78» 
which  fixes  the  penalties  of  calumnious  |ife- 
seeutioo,  and  provides  particularly  ibr  the  OMS 
of  process  at  instance  of  the  lord  Adrocale 
only.  <*  And  gif  the  king^  majestie's  advoeit 
be  onlie  pursewer,  (says  the  act)  his  inforaiv 
to  psythe  paine  tbrssaki."  Andinileed  it  is 
obvious  with  respect  to  crimes  of  «  publie 
nature,  such  as  treason,  sedition,  biaaphemy, 
and  many  others,  for  which  no  private  indi- 
vidual ever  had  right  to  prosecute,  that  there 
must  always  have  been  some  reguhur  coarse 
and  method  of  complaint,  wherein  Uie  offenden 
in  that  sort  might  be  brought  to  justice.  Bui 
farther,  with  respect  even  lo  crimes  injarioua  le 
individnab,  if  they  were  ako  of  an  intereeti^ 
nature  to  the  public,  his  majesty,  in  our  prae- 
tioe  and  constitution,  seems  always  to  have 
been  esteemed  a  competent  accuser.  The 
statute  1436,  c.  140,  has  these  words  for  thK 
*^  Trespaasours  may  be  accused  at  the  king^ 
instance  allenarly ;'  imd  it  ordains  (paneralhr, 
**  That  aU  maires  and  sejjeandes  arreut  at  ae 
schiriffis'  bidding,  albeit  that  na  partie  ibl- 
k>wer  be,  all  trespassoures,  and  that  the  laid 
scfairefl'e  follow  the  said  trespassonres  in  the 
king's  name,  gif  na  partie  f<4(ower  appeeris.'* 
And  again,  a  still  more  ancient  statuu^  14M» 
c.  20,  etttitlcd,Of  Murebuming,has  this  ffT|n«Bi 
provision,  after  fixing  the  penalty  of  the  tra^ 
pass.  '«  And  gif  the  lord  of  the  Und  iwae 
notsik  pain,  nor  punisbis  notsik  tresnessonwi, 
as  is  bcnir  said,  the  instice-clerk,  be  the  i»- 
ditement,  saQ  gar  sik  trespassoures  he  one* 
rected  befoir  the  justice,  and  punished  as  mui 
is."  in  these  words,  we  have  a  hint  ef  the 
course  in  which  this  sort  of  business  was  i 
pmpaied,  and  wiiioh  aoesidmg  to  tlie  v 
■eneiofoarsliMciofthe  tiftecnlfaianl 


His  Majettie't  Advocat  replyes.  That  1.  he 
oppons  the  execution,  nor  was  the  kin<;  to  take 
notice  of  his  being  prisoner  for  a  cry  me,  it  be- 
ing sufficient  to  the  king  to  consider  his  dwell- 
in<^  house.  2.  This  reaves  in  a  defence,  be- 
cause it  is  ane  exception  upou  the  uulitie  of 
tlie  execution,  and  consequently  cannot  be 
pro|)oned  for  ane  absent.  3.  In  fortification 
of  the  cxeculioi),  offers  to  prove  his  familie 
lived  at  Hill  a  quarter  of  ane  year  befor. 

The  Lords  finds  that  this  defence  for  Gavin 
Hamilton,  of  Hill,  resolreing  in  ane  nuUtie  of 
the  execution,  and  not  being  ane  essonie  or  ex- 
cuse, cannot  be  receaved  unlesse  the  partie 
wcr  present. 

Intran* 

Hohert  Trame^  in  Lanerk 

John  Scolt,  elder,  in  Keumuir 

John  CorsCy  in  CUdsmilne 

James  Thompson,  ponioner,  of  Gamqnen 

Akrandcr  Wur draper y  in  Shctletoun,  portioner 

of  ^iidlequarter 
David  Lindcsay,  portinnrr  of  Jacktoun 
John  Nhnmi,  in  the  Forth 
Geonjc  Muirhcad,  of  Steinstoun 
Archibald  Cieiland^  of  Knowenoblehill 
James  Hamilton,  of  Halsyd 
Jahici  liumilton^  of  HiovXioAX 
J  oh  A  llohnes,  of  Newtoun 
Jlotcrt  RussiHy  portioner  of  W indie-edge 
Hcnrif  Bnsicell,  portioner  of  Dunsystoun 
John  [T^ar//ro/;er,  portioner  of  Denishill 
James  Meik,  portioner  of  Fortisset 
Archibald  Frcntise,  in  Staioe 
James  Muirhead,  of  Breidisholme 
Mr.  Robert  Black,  of  Silvertounhitl 

Indytcd  and  accused  for  the  crymes  of  trea- 
son and  rebellion  at  lenth  mentioued  in  ther 
dittay. 

Ptr5faf«r.— Sir  George  M'Kenzie,  of  Rose- 
haugh,  our  soveraigne  lord's  advocat. 

Fro^rs  in  defence, — Sir  Geo.  Lockhnrt,  Mr. 
Wm.  Fletcher,  Mr.  William  Hamilton^  Mr. 
John  Kincaid. 

Sir  George  JL)ckhart  as  procourator  for 
Breidsholme  and  the  other  defemlers  craves 
they  may  be  putt  to  a  present  tryall,  and  that 
his  "majestie's  advocat  may  condescend  upon 
ane  informer  in  regaird  that  the  persuit  btnog 
for  treason  the  act  of  parliament  is  mqst  clear 
and  positive,  that  whoever  accuses  any  person 
as  suilty  of  treason,  in  cace  he  succumb  in  the 
probation  he  is  lyable  to  the  paine  of  treason, 
and  a  commisaion  from  the  counciil  or  thesau- 
rie  in  gcnerall  termes  is  notsufficient.^ 

His  Majesties  Adtocat  declaircs  James  So- 
mervaill  hade  commission  from  the  lords  of 
the  thesawrie  to  go  unto  the  countrey,  and 
take  information  againestthe  pennall. 

The  Lords  Justice  GeneraH and  CommisMSB- 
ers  of  JiMticiariey  find  that  his  miyestifls  nd-. 


^  9n§h%  t»  inftsttpaHrill  soch  ttf  the  ii&nnnns, 
WWMM  itMc  wiitieifef  ooottiaed  ta  tner  ll^tit 
ire  ftll  preiCDU  and  oompdring. 

Irit^  fi'rnh  Jusitcc  Gencf nil, Justice Clt!rk,and 

Co  1 1  ■  rs  of  J  usliciar y,  of  conienl  c^f  hU 

1  u ;i ;  .  ivp. \  ^  n n*\  for  ^e ^r e rait  rit lier  causes 

ftiiii  C'JLJ  .  -,■■'.■    1     iV   ■•      ^  *  ,'.ik1 

he  t!iir  j  'S 

Vl  the  sntus  jtir»eii   i  r  ^nii,  ^«>1iq 

Ccireei  amt  remnant  ptiii  >  nanied,  and 

ifi?5f*T' r-^-  f'  r   -  i-^mgor  i.tnt;i».H|4  of  i\ny  n«we 
lei h  jii  for  the  eiymes  almve  spe- 

•^  If  |,i  :;^  ..iie  rxpresse  v^urraud  from  the 

nils  in  prtsaitiiSy  whcrupuD  the  de- 
iifid  tlier  pracouj-ators  alxivt^-named,  ask- 
eti  and  iouk  in^trunieaiiq,  and  pmtested  fur  ther 
cauiioners  rtJietT^  aod  cra?fd  ther  Utmds  of  caa- 
tiOTi  riii|f!jt  be  dtly?erctl  up,  which  proteslntion 
aiient  the  cautioneni  reliefr,  the  saiils  lords  ad- 
tnitttd,  and  herhy  adtnitta,  ond  ordaiues  ther 
' '  \  cautioners  bonds  to  b<i  giveo  up. 

Kis  MajU^ie^'t  Advocat  Heclairei  he  BhaU 
rtnaiat  agiineit  any  of  the  dettuders  aa  to 
Um  tlMf  dyc't  1!  deserteil  Y  ithnuX  a  apeckU 
Fraud  from  the  privie  eouuciJi,  condescend- 
ing^ upon  ther  tiames,  surename^,  and  de<jijriia< 
tioDs,  wberupon  air  Geoj^  Lockbart  and  Mr. 
VViJIiam  Fletcbcr,  adrooata,  asked  aod  took 
iastrumeiita, 
^^d'he  Lordi  contimie  the  dyetminest  James 
^^poatyoe,  w right  ia  Luierk,  John   Robert^ 
^Ki   weaver  and    portiunert  of  Hbetleatoutif 
Akxander  Murray ,  ot  Westouohead,  and  James 

of  the  iixtecDth  century,  appears  to  have  lieen 
Ihvrn  t  that  alkr  iiifonoation  had  been  taken  up 
in  the  several  counties,  aoder  tlie  hricTe  of 
dittay  in  the  luaaaer  fbnnerly  detailed^  the 
ju*itice< clerk,  at  the  oommand  of  the  justiciar, 
]«iaii«^  up  fn>m  those  materials,  what  ^as  then 
caUed  the  l^ortiious  Roll,  aad  Traistis  \  that  is  a 
toU  of  the  names  of  the  delinquents,  and  a  file 
^todiotaMnts  agouti  them,  aeoommiidated 
!ir  wwpcetiye  cases.  And  with  the  nme 
also,  to  cirpede  the  ncecsaary  pre* 
the  thai  of  ttiove  eiuurg^B^  and  to 
Df  nis  nrflcrs  ta  tbecrowncrB  (for  we  too  had 
Ibia  effice  imneH/  ^uGfh  now  lon^  liisused) 
H^iedermrr-*' •■  --  '  ■  -^  ♦liem  in  ward, 
lurerv  frt>ir  appeamnce. 

^pemrmii  »  \»hethcrwith 

l^llie  start  yrcs,  or  the  trial 

a!  crTmf-i  ,  "t  illiTt*;  *"vt    TMin- 


t 


i-i  ue,  thul  lu  train- 

►  insert  the  iianrie 

•cate,  nor  of 
!   such  eoo' 

■  '  dtfwnio  iHt^ 

y.asappeani 

J    iiom  the  *ery 

>  MockLiizii^  has 

tit,  21, 
^  othff 


Wilfoii,  ta  Ridj^'ehpad  -  '^  ^'  '  j  IT,  who  are  in* 
d>ted  tor  the  said  il  :!t   the  a<x-otKl 

ftiomlay  of  Jttut  ulxi,  .ik^i  .  i  uiaiii«s  Uie  dyel 
a^atniTi^t  Jaaoes  Lot  k hart,  in  Hamilton,  caAtd 
laird  L>Qfkhart,  till  the  Kxt  duy  of  ApryH  niict« 
and  ordaines  them  to  Hntl  caution  tor  thee 
appeirance  at  these  dyetSi  under  the  painei 
contained  in  the  newe  acts  of  parliamcnL 

A  DfiSATB, 

Sir  George  Lockhart^  for  the  pacmalb,  aU 
leod^cs,  that  they  having-  Bdduce«l  a  great 
muny  witneases  tor  proreing  of  the  g'rounda 
of  ther  ejicul|iat<on,  and  the  dyet  being  i;on- 
tinuctl  m  that  the  paiinalU  moat  compeir  op 
undeiipfne  the  oertitication  of  lawe,  they  ther- 
for  crave  aooordingfto  the  opinion  of  lawyers^ 
and  particularli©  Matheiis  iu  his  Utte  dc  'pro- 
baliouu  Innocentifi^,  ClivruF,  Que^t*  53,  and 
others,  that  the  Hiinesses  of  ther  exculpation 
may  be  examined  to  lye  in  *  retentis  ad  futu- 
'  ram  rei  memoriam,* 

Mr.  William  Flrtcher  crafCB  the  like  for 
KnoweohleliJIt  and  others,  as  to  whotn  the 
dyet  is  deserted  upon  the  gToumJs  fcirsaid. 

The  Lorda  delay  the  examination  of  the  wit^ 
oesaes  ol'  the  cioulpation  till  tlie  dyet  of  coo- 
tiuuation  come,  and  ref  U!ke  to  examine  witnasaai 
wher  llie  dyet  is  ileserltd. 

The  said  day  Jatnea  Hemple,  maltman,  iu 
Hamilton,  gave*  in  presence  of  the  saiiU  Lorda 
ane  Petition  .sig^ned  ht'  him,  Showeing  that  be 
was  deephe  sensible  of  his  high  mislbrlufie  in 

they  had  hee^  hronght  into  court,  it  waa  th# 
duty  of  the  lord  ndvocale  to  insist  on^n    kim. 
port,  and  bring  them  to  an  is^ue  ; 
account,  even  in  1  he  oldest  books  of  ;i  u ,  <  , 

he  is  marked  \nihepnrtihu$  as  counsH  ior  tlie 
crown  (for  the  Pet^ewar,  Advocntui^,)  in  like 
manner  as  was  practised  with  res(>ect  to  the 
counsel  for  the  accused.  In  effect,  tliereforeg 
though  not  formally  stated  as  snch  in  the 
charge,  the  lord  advocate  was  prosecutor  for 
hismajeffty's  interest,  and  was  master  of  the 
instanoe,  which  he  mttr^ht  deaert,  or  restriet,  of 
bring  to;in  issue,  as  he  saw  cause.     And  thuS| 

Xn  the  wholft  1  think  it  prohable,  tFiat  the 
rementk>oed  act  of  Jatnea  6|  which  allows 
the  lord  advocate  to  pafMii  llMNlgll  the  party 
injured  be  silent,  is  to  bt  nodersload  of  thnf 
foroi  of  pniaecotion  only,  wherein  the  imlivt^ 
dual  oaast  Uavc  insUttd  -  tirunt^y  by  summootf 
or  cr  till  inal  letterst  ^  h  'aaio  ^  aeon^f 

plainer  is  engroaacd,  —  tha  acoUMl  ¥§ 

a  particular  day  of  trial,  iiat  whether  1  ana 
ri|fht  in  thts  conjeoUire  or  not,  certainly  dMt 
statute  must  have  added  la  Iba  wcigbt  mA 
consequence  of  fkm  offiadi»  who  aaw  vpvaiM. 
sustained  the  peiaon  of  hia  m^OBty,  tmA  wtMm 
ed  the  law  in  this  interaatiii^  departiaaiitf  It 
ia  laid  aooordin^y ,  that  aoon  af tar  thii  nanod^ 
ns*  iM  tha  tHal  of  Amot  of  WoodmUa,  Nov.  3, 
t598,iaibefii«ttiiataiioaaf  hiibaiag  wamktA 
in  the  raoord undertbe lilk of  l«Pif  A4toail% 
wlikh  ka  has  t  w  mm  NtalMa.**  ! 


»n] 


33  CHARLES  11.      Proceedings  againtt  the  Lanerkahire  Men,      [27? 


having'  wandered  from  the  road  of  his  loyaltie  , 
and  duty  towards  his  soveraigne,  in  being  led  - 
on  to  a  rebellion  agaiueat  the  king  and  his 
authoritie,  and  for  which  he  confesses  he  de- 
«erveth  the  greatest  severity  the  lawes  cane 
indict  upon  such  ane  delinquent,  and  as  he 
hath  a  true  sense  of  his  cryiue,  so  he  does  in- 
genuously declaire  howe  long  he  continued  in 
it,  which  was  from  the  sabbath  night  efter 
Drumcloge  untill  that  rebellious  attactque  upon 
Glai^owe ;  and  having  that  same  day  returned 
to  Hamilton  he  did  present  his  majestie's  pro- 
clamation, requyreing  the  rcbeJlsto  lay  down 
tlier  armes,  and  did  detaste  and  abliorrethe 
cryme  as  much  as  his  misiortune,  and  us  to 
which  he  pleads  his  guilt  and  not  his  innoceii- 
cie,  and  throwes  himself  upon  his  majestie's 
clemency  and  mercy;  and  as  to  his  future 
cariage,  dureing  that  horrid  rebellion,  he  did 
demaine  himself  peaceablie,  and  followed  his 
ordinary  busienes,  which  he  is  able  to  makeap- 
peir  by  the  most  famous  and  loyall  persons 
within  the  toun  of  1  lamiltoD,  and  as  to  which  he 
hath  cited  \\  itnesses,  and  he  is  content,  as  a  far- 
der  proof  of  his  sincoritie  anil  devot  resolutions, 
to  live  loyallie,  to  take  such  tests  as  the  lawc 
reqnyrs  of  good,  and  faithfull  subjccttS ;  ther- 
for  crarcing,  that  if  the  saids  lonis  examine 
witnesses,  they  would  examine  them  as  to  his 
guilt  eiler  the  attactque  at  Glasgowe.  The 
whiik  petition  is  subscrvbed  thus:  **  James 
SempU." 

The  said  Jamest  SempU  beiug  entered  on  pan- 
nail  declaires  that  the  Petition  above  written, 
presented  in  his  name,  is  subscrybe<1  be  him, 
and  he  acknowledges  the  lybell,  and  comes  in 
will,  and  declaires  his  sorrowe  for  his  cryme, 
and  is  content  to  subscry  be  the  declaration  and 
to  take  all  the  tests  requyred  of  the  kind's 
subjects. 

Sic  Subscribitury        James  Sempll. 

The  Lords  continue  the  dyet  agalncst  the 
said  James  Sempll  till  to-morrow. 

The  said  day  William  VVilkie,  commissar  of 
Lanerk,  and  Thomas  Stodhart,  commissar 
clerk  ther,  being  oftymes  called  to  have  en- 
tered and  presented  David  Whitt,  smith  in 
Lanerk,  and  David  Gibson  ther,  befor  the  saids 
lords  this  day  and  place,  in  the  hour  of  cause 
ther,  to  have  underlyen  the  lawe  for  ther  rysc- 
ing  and  joyning  in  amies  with  the  rebei'ls  in 
themonethsof  May  and  June  1679,  burning 
his  majesties  laws  and  acts  of  parliament  at 
the  marcat  croce  of  Kutiicrglen,  orowning  out 
boncfyres,  sett  on  in  commemoration  ot  his 
majesties  happie  restauration ;  resisting,  feight- 
ing,  and  opposeing  bis  majesties  forces  at 
Londoun  hill,  Glasgowe,  and  Bothwel-bridge, 
and  committing  the  several  other  acts  and  deeds 
of  hye  treason  and  rebellion,  at  length  men- 
tion^ in  the  criminall  letters  rais^  at  his 
majesties  advocats  instance  against  them,  and 
aeverall  other  persons  tbereanent,  as  they  who 
became  cautioners  and  sovertie  acted  m  the 
lipQki  ef  adjournal,  coqjuiictlie  and  aeYeraUie, 


for  entering  and  presenting  the  nids  David 
Whytt  and  David  Gibson  to  the  effect  fomid 
lawfull  tyme  of  day  bidden,  and  thej  not  en- 
tered nor  present,  and  the  saids  persone  nor  yet 
they  compcirand  ;  the  lords  justice  cleik  and 
commissioners  of  justiciary  therfor,  be  the 
mouth  of  John  Mckenzie,  macer  of  court,  de- 
cerned and  adjudged  the  saids  William  Wilkie 
and  Thomas  Stodhart,  cautioners  forsaid,  to 
be  in  ane  imlawe  and  amerciament  of  fyve 
hundreth  racrks  for  not  presenting  ilk  ane  of 
the  saids  David  Whitt  and  David  Gibson,  and 
also  decerned  and  ordained  the  saids  persons  to 
be  outlawes  and  fugitives  frae  his  Majesties 
lawes,  and  to  be  putito  the  home,  and  alt  ther 
moveable  goods  and  gear  to  be  escheat  and 
in  brouq;1it,  to  our  sovereign  lords  nse,  for 
ther  comtemutioTi  and  disobedience,  which  was 
pronounced  lor  doom. 

Uamilton  and  Thomson  delayed. 

The  IiOnl.4  Justice  Clerk  ami  Cororoissionen 
of  Justiciary  for  several  causes  moving  them, 
delay  the  try  all  of  James  Uamilton,  of  Pryor- 
hill,  and  Johu  Thomson,  carficntarin  Ijauerk, 
who  are  indy  ted  for  being  accessorie  to  tkc  kte 
rebellion. 

The  said  day  anent  ane  Petition  presented  to 
thcs;uil  lords  in  name  and  behalf  of  Alexander 
Hroivn,  in  Lanerk,  makcaud  mentioiie,  that 
wher  the  supplicant  being  chaleuged  for  bein^ 
at  Bothwel-oridge,  and  cited  to  compeir  befor 
the  snidslonlsin  ane  court  holden  at  Glasgowe, 
in  October,  1679,  he  did  compcir  personallie, 
and  entered  himself  ou  pannall,  and  declaired 
he  was  readie  and  willin*;  to  abyd  ane  legall 
tryall,  at  which  tyme  the  saids  lords  in  re- 
spect of  his  majesties  indemnitie,  and  of  ane 
declaration  under  the  lord  Carawatha  hand, 
bearing  the  supplicant  to  hare  taken  the  bond, 
duscrt^  the  dyct  siinpliciter  agaiuest  the  sun- 
plicant,  as  the  act  of  the  said  court,  under  too 
hand  of  the  clerk  therof.  given  in  with  tba 
petition,  bears ;  notwithstanding  wherof,  the 
supplicant  in  a  short  tyme  therafter  was  ap- 
prehendil  be  Mr.  Wiliiam  Ferguson  AiUeadgiif 
him  to  be  ane  heritor)  imprisoned,  and  Ma 
goods  scazed  upon,  and  disposed  of  at  pleasure; 
whcruj>on  the  supi>licant  having  made  applica- 
tion to  the  counciil,  the  lords  of  councill  did 
recomcnd  to  the  carle  of  (jlencaime  or  lord 
liosse,  or  any  one  of  them,  to  make  tryall  ef 
the  supplicants  condition,  and  if  he  was  ant 
heritor ;  and  the  lord  Ho^so  having  accordingHa 
made  tryall,  the  lords  of  councill  upon  his  re- 
port did  grant  ordor  and  warrand  to  the  magis- 
trates ot  Lanerk  to  sett  the  supplicant  at 
libertie,  as  the  act  of  councill  made  therancnt 
produced  with  this  petition  testifies,  yet  never- 
thelcsse  upon  some  misinformation  or  ratlMr 
mistake,  he  is  yet  fardor  tn)ubled  and  con?eiiied 
befor  the  saids"^  lonls  upon  ane  citation  at  hk 
dwelling-house,  the  supplicant  himself  bcHtf 
absent  and  abroad,  and  knoweing  nothing  «| 
the  affair,  conceaving  himself  in  securitie  — 
the  forsaid  act  of  councill,  wliich 
upon   the  lord   Rosse  his  report, 


fur  ibe  saids  lonls  would  be  |»leaseil  \m  talce 
tlie  premises  lo  cousidenLtiou,  and  Ijkways 
c<)nKidt;r  the  c«»ndiii9U  ot'  the  !JU^i|ilic&iit,  his 
I  W^ff  and  numerous  fumilie,  who  is  iiowe  tra- 
^rgtlin^  tibratid  to  miike  up  that  losse  he  liaa 
Hhaineij  atreadie,  and  to  sutislic  his  creditorfi, 
^^Ibriii  he  ta  «iii  much  coi^ai^ed,  and  that  he 
'  can  Dot  but  he  uttcrhe  ruiued  if  the  dyet  he  not 
^d^erted,  or  the  su{>{>licuiit  absrtlfed,  ii$  id  jus- 
■I^Jie  ou^hc  lo  he. 

^fplie  Li  >rd!>  Justice  Clerk  And  Commissiooers 
^Rusticjury  !i  '  '  "- peliliun  with 

the  act  of  c«i'  nrnall  abcve 

ineuiionod,  tSit  >  Mit-i<«»r.n  cMu^mLid'  his  ma- 
je^tiei  ndvocat  excuse  the  petitioner's  absence, 
«nd  de5ert!itbe  dyet  siitipiiciter,  and  dl^ichaigcs 
all  newe  leU^fJi,  except  be  a  war  rand  in  j/rc- 
fittt 


lotmn' 


if- 
^ohn  Witliamwn^  sod  l<i  Mongo  WilUamson, 
Itor  of  tlic  htnds  nf  HoU. 
^ohn  Wiihmn*fm^  son  to  Robert  Wilhumsont 
ed  lord  Hhortcteugh, 
^ohn  Spreutt^    son  to   Mr.    John  Spreiillj 
wriltcr  tu  Gfasgowe. 

"Utiiam  Tutdatf,  son  to  VVilliniD  Twedale» 
Balyie  of  l*«nerk, 

^avid  R'jbtrtnon  ther^  called  Possie  by  iiick^ 
pe. 

%vid  lF<c*>,  son  lo Weir  tlicr. 

"iaracf  H''fl/frcr  youn^r  of  Ualk*.-tburue« 

ndytvd  nod  accui^ed  for  the  cr\*me«  of  trca- 
I  and  relH-Hion,  at  kng^th  meotmned  in  ther 
ay  ut  in  die  pi-ecedeote. 

?ertactr.< — Our  sovereisfD  lord's  adroeat. 

Mr.  Cofin  M*  K'f nric,  advocat,  as  procouralor 
for  John  VViUiAmftun  son  toMungo  Wdliiim!»on, 
heritor  of  the  bndf  uf  Holl^  aileadc:^,  thut  he 
caiuioi  jLjoe  lo  the  kno^Oetli^e  of  uue  inquest, 
heinq^  hut  only  the  eldest  «on  of  anc  herilor^ 
VfUo  hh'i  Liken  the  benefit  of  Uis  inajtisties  gra- 
cious act  of  ludemnttie^  and  hh  father  is  alive; 
and  r«'|icifn  the  «aiue  defence  for  John  William- 
•on^ son  to  Robert  ^Villianison^  iiiShortcteir^h, 
and  for  instructing^  of  his  defence^  product  d 
ceriitk-atfi  under  llie  hand  of  the  carle  of  Curn- 
ivalli,  who  v%n.s  eurnniiK*»ionat  by  the  lord«  of 
hi^  ;    ■     '         •  .fill,  to  take  the  bund  ap- 

|w)  -  iudemnilie,  from  such 

JK'  . — itc  sbyrc  of  Lnnerk»  and 

Wi  1  1  in  the  late  ttl»e[lion»  the  nhilk 

w^ii  ^  of   the  dnti-  the   15th   of  Smi. 

leuiber  107^.     Mr.  Colin  f\|*Kenzte  rffpeits  lite 
•ame  defence  for  J ai ties  >Vulk*i.   v^*ii»U'^^t,  'if 
Ualketburne^  and  produced 
tif»un«  undi'r  the  hand  of  Mr, 
olerk  to  \m  m*je«tie»  pnvie  couiriU,    ! 
tH^ht  of  I'Vbruarv  laiit^   b^^ariutf  thai  !i 
tak*  [  John  fliirp^'t,  n|  t  u;ij 

bu^  K  of  Lanerk,  upon  the 

ichvnin  or  Mt 'tiubcr  lant, 

|r  Jvhn  Hifcnid,  ndvncat,  rcpcit»»  the  same 
acefi»f  J"'  '.nd  proi|uce» 

'act  of  COL,       .  .!i  of  hK^ptetu- 

fOL.  XI. 


I,  tf.  !©8L 

her,  1679,  bearinc'  *li +♦  i'^  lii.l*!  tmnTnl  ^tl.tr./LT, 
ed  and  in  acted  1 

not  take  up  arrrt'      _  ,  ..s 

authoii^'e,  cotdbrnjeioiue  mdeninitie,  and  that  J 
he  was  therupon  »ett  at  Uberfy  by  ordor  of  the 
privie  cQuucilL 

Mr,  Jofin  Menziei^  ad  vocal,  repctts  the  sam#l 
defence  lor  Duvid  Huberlsun,  Wiltratn  Twed- 
dale,  and  David  \Veirf  panuall^,  and  produced 
ane  testiticat,  under  the  hand  of  AVilliani 
VV i Ik ie,  commissar  of  Lunerk,  and  ane  of  the 
sheiifTdLpuU  tlierof,  cert  dicing  and  declairin$f 
that  the  said  Jiavid  HoUnliioti  did,  upon  tlitt 
IHlli  ilay  of  February  \i^i^  conijuir  belivrc  hiui 
anil  declair^  ihut  he  was  »orie  that  lie  wai^  iu- 
(fadgr*d  in  ihe  late  rebfdlion,  and  htindxllo 
craved  the  brnefitt  of  his  majesties  gracious  in- 
demnities and  did  si^ie  the  bond  never  to  lilY 
armes  a},faincst  hi$  mujcfitie  or  his  authcitlie  in 
t^rne  coming,  which  cerlificat  is  dated  the  »ai(l 
IBth  day  of  IVbrnary,  1681.  And  aho  pro-  ' 
duced  another  certificate  under  the  hand  of  tha 
8*d  \ViHii»m  Wilkie,  dattd  the  Uih  of  March 
last,  hearing  that  uf>onthe  last  day  of  I'Vbruary 
last  bypast,  the  suid  Willi:im  Twedale,  pannnll, 
cotopeircd  personallie  before  him  and  declaired 
that  he  wossoriethnt  he  wa5cn4ifad|^cd  in  the  late 
rebellion,  and  liumblie  crured  tite  benetit  of  hia 
majesties  gracioutitademnitie^  and  did  sigue  the 
bond  ne » er  to  ryse  in  armes  ai^aitiest  his  majestie 
or  bis  authoritie  in  lytne  comein^.  And  alio 
produced  another  teslilicat^  under  the  hantl  of  ' 
sir  John  Harper,  of  CandmsncthaB,  kuijfht, 
sliirrilf  depni  of  Lanerk,  certitiein^  and  der.l air- 
ing that  David  Weir*  son  to  the  decrast  Hugh 
IVeir,  mailman,  burjjfes  of  Lanerk,  diil  upon 
the  28th  day  of'  February  last  bypast,  compeir 
befor  U'dliam  VVilkie,  commissar  of  Lanerk, 
commissionat  be  him  lotbc  effect  underwlten* 
and  declaired  that  he  \^m  sorie  that  he  wasi  en« 
f/adged  intlie  lute  retK^lion,  ai|d  humblie  craved 
the  benefit  of  his  majesties  g^raliouj^  indemnitie, 
and  difl  signe  the  bond  never  lo  lift  aruiea 
a^afnest  his  mnjf-stie  or  his  authorilie  in  tyme 
coming*,  as  the  samcn  certificat  of  the  date  tl>c 
nynth  of  Match  la^l  bypast  id  itself  at  lengtli 
bears, 

HisMajestie's  Adrocat  of  consent,  flndi  the 
defence  nlcvanf,  the  defenders  rennncinjjf  ther 
heritage  in  lb  fours  of  his  majf-stte,  as  well 
vvhfrofihey  hade  actuatl  ri^ht,  the  tyine  of 
the  rebellion  or  the  right  of  apparancie' 

Mr.  CoUti  M^kftiMc  Tcplyes,  that  the  defence 

Atanda  rclcvaul,  in  respect  of  his  majestic's  in- 

jitie,  which  prmyd;*  that  nil   persons,  ei* 

licse  that  are  nctuni  heritor*,  should  be 

rulicd   and   rtmittcd,  and  for  the   furdcr 

:je  of  \m  leid'^cs*  speciullte  providn  ami 

(»  's  that  his  jud^'cs  Jthould  not  streaicli 

»  o  their  prejudice  ;    but   ong-ht  and 

J  nrrt  til*' sanic   in  ther  favouns  ia 

the  mou  '  way,  so  that  from  the 

rerie  propi  i  .  word  heritor,  ane  heritor 

is  undtr3too<l  Lo  U*  he  w  ho  is  mfef^  and  taiaedp 

wbfcb  i»  not  tbo  cace  of  the  paatialU 

T 


J753 


33  CHARLES  II.      Prcceeiingn  against  the  Lanerkskire  Men,      [9t§ 


His  Majestie's  Ailvocat  duplys,  that  the  tie- 
9igneofthet»roclauiatione,  and  the  words  of'  it 
d<»e$  exprcsslie  inrUid  appeirand  aires,  whose 
rija^lit  when  the  cace  of  their  succession  does 
exif^t,  makes  thein  *  iinainetcandempersouam' 
wiih  the  det'u- rt  and  ipsojuie  continues  the 
fatliers  possession  in  them,  and  since  the^  are 
to  renunce  all  ri^ifht  they  have  to  heritage, 
thev  must  renunce  ther  rig^ht  of  appeirance, 
and  as  to  the  effect  of'tiie  appeirance  that  most 
be  debateil  svo  loco,  hut  is  not  competent  in  this 
place.  The  Lords  Justice  Clerk  and  Commis- 
sioners of  justiciary  fiind,  that  the  pannalls 
ought  only  to  reiiiuicr  the  henetitt  of  all  lands 
and  heritages  beliilicn  in  them  befor  his  ma- 
jesties act  of  grace,  and  not  what  did  befall  to 
them  be  deccasie  of  any  of  ther  predicessors 
efier  the  said  act. 


18M  March,  1681. 


Intrau* 


Jamr$  Muirhead,  smith  in  Lanerk. 
James  SempUy  maltmanin  Hamilton. 
John  Scot,  elder  [tortioner  of  Udin^toun. 
Wiilium  WaHacCy  portioner  of  Mainhill. 
John  Afarshullj  fewer  in  Hamiltoun. 
James  Young,  of  Peilhill,  prisoner. 

Indyted  and  accused  for  the  crymcsof  bye 
treason  and  reliellion  mentioned  in  ther  dittay, 
which  is  booked  the  14th  instant 

Peneutr. — Sir  George M^Kenzie,  of  Rose- 
haugb,  o0r  Soveraiguc  Lord's  Advocat. 

Procurators  in  Defence, — Sir  John  Lauder, 
Blr.  Colin  Mckenzie,  Mr.  John  Menzies,  &c.  . 

The  said  Advocats,  as  procurators  for  the 
said  James  Young,  of  Peilhill,  declaired,  That 
he  being  apprc;hcndit  and  comnutte<l  to  pri- 
sone  within  the  Tolbuith  of  Glasgo\Te,  and 
therefter  transported  prisoner  to  tbe  Tolbuith 
of  theC^anuogat,  wher  he  has  lyen  for  a  long 
tyme,  though  he  be  altogithcr  innocent  of  tbe 
crymes  above  spccifit  laid  to  his  chairge,  he 
offered  himself  now  readie  ami  willing  to  abyd 
ane  legall  tryall  therfor,  and  dissented  frae  all 
faider  continuatiou  of  the  dyet. 

The  Ixu-ds  Juslicx*  Clerk  and  Couuuissioners 
of  Justiciary,  ofcoiist-nt  of  his  ma  jesties  advocat, 
and  for  se>eraU  other  causiitntoviug  them  de- 
serted, and  be  thir  presents  deserts  the  dyet 
simplicitfT,  and  discharges  the  laiseing  or  out- 
giving ol'  any  newe  IcitiTS  againest  the  defen- 
der for  the  crymes  above  spccifit  in  tyme 
coining,  except  be  ane  expresse  warrand  in 
lireseiitia,  and  ordaines  the  said  James  Young, 
of  1*1  ill) ill,  pannall,  to  he  sell  at  liberty  with- 
<Mit  ciiitiun.  WhfTupon  his  procourators  above 
uameo.  nske<l  and  t^Htk  instruments. 

The  Lords  deficits  tbe  dvet  as  to  John 
W'ilkie,  elder,  portioner  of  Cdingstoun,  who 
coiiipeiaMl  and  entcre<l  the  pannall  upon  some 
mis'.ake  and  misinfsrmation  to  have  undcrlyen 
Ihe  laue  for  the  crymes  of  treason  and  rebel- 
hon,  nientioncd  in  the  dittav  raised  a^nest 
111*  jrtbell  heritoi-ftin  Lanerks&ire,  faia  majestie^B 


adrocat  having  past  from  him  jadidallie,  he 
not  being  in  the  letters  nor  in  the  executions.    ' 

John  Marshall,  writter,  in  Hamiltoao,  paii« 
nail,  judiciallie  consents,  that  ail  of  the  wit^. 
nesses  to  be  adduced  againest  anjy  or  all  of  the 
pauiialls  be  adduced  againest  him,  as  well  19 
these  contained  in  his  list. 

Sic  Subscribitur       Jo.  Mbrsbau. 

TheLonIs  Justice  Clerk  and  CommisskmnB 
of  Justiciary  flind  the  dittav  relevant,  and  re- 
mitted the  same  to  the  knowledge  of  ane  anyte, 
as  to  the  saids  James  Muirhead,  James  Sem* 
p^e,  John  Ificott,  William  Wallace,  John  Mank 
all,  no  we  on  pannall ;  as  also  as  to  tbe  remnaot 
persons  mentioned  in  thedittay,  whose  naitiei 
wer  contained  in  a  roll  given  in  to  the  aasyMi 
and  are  mentioned  in  ther  verdict. 

ASSISA. 

Alexander  Hlair,  merchant. 
Lewes  Jtdmstoun,  merchant. 
Thomas  Noble,  merchant. 
Captain  Johu  Binning,  vintner- 
Alexander  )k)thwell,  of  Glencone«t 
James  Balyie,  merchant. 
Mr.  Andrew  Temple,  of  Ravelrige. 
James  Baird,  of  8aughtounhall. 
Gavin  Weir,  of  Dairy milne. 
Robert  Sandielands,  merchant* 
John  Lindesay,  taylor. 
'  Robert  Eliot,  wright. 
Alexander  Henrvson,  6f  N'ewhaven. 
James  Gray,  of  Warriestoun. 
John  Dundas,  of  Ilarviestoun. 

The  Assysc  lawfullie  swome,  no  objectioik  ia 
the  coutrair, 

His  Mujtsties  Advocat  takes  instramenll 
upon  swearing  of  the  assy se,  and  for  probation 
adduced  the  witnesses  efter  deponing,  and 
againest  tbe  said  James  Semple  adduced  hil 
judiciall  confession  emitted  yesterday  in  pre- 
sence of  the  lords,  which  he  this  day  reitefall 
and  renews  in  presence  of  the  assyse,  ail 
comes  in  his  majesties  will  and  begs  mercy. 

James  Hamilton,  in  Hamilton,  called  NepMb' 
aged  tburtie-four  years,  unmaried,  purged  ttii 
swome,  depons  he  sawe  John  Wilson,  portioMf 
of  Staniefiatli,  wreitter  in  Lanerk,  with  tbt 
rebelU  several  1  tyuies  in  armes,  ryding  «• 
horseback,  with  a  sword  and  case  of  pijrtolli,«Ml 
that  he  was  calle<l  a  commander,  and  t\m  ba 
sawe  betwixt  tbe  first  of  June  and  thedeftteff 
the  rebells  at  Both wel- bridge ;  depons  he  tMia 
Mr.  Thomas  Pillans,  in  Lanerk,  in  annoi  wMl' 
a  tronp  of  the  rebells  that  day  the  infiil  waaal 
Glasgow; 
the 
hart, 

a  small  sword  about  him,  goeing  up  and  ( 

the  toun  with  others  of  the  rebeus  dnraii^  tfal 
tyme  forsaid  ;  and  the  same  tyme  and  plaoaht. 
sawe  Gavin  Hamilton,  of  Hill,  in  ooin|ian 
with  the  rebells,  in  armes;  depont  he  IBM 
Jaiues  Weir,  of  Jobiisbill,  coma  abn^^at  wU(« 


for  TVittsnn* 


tiA  of  Ihe  refa^lli:,  i«>lio  brought  n  cannon  from 

s,  atul  sawe  him  with  llmt  puriie  of  the 

elTit  that  look  dauti  the  n  Ih^IIs  UenKh  at  ll.i- 

[iUo»t  and  (Ji^pons  the  aaitlJamei  Weir  Jis- 

ary;ej  a  yi^uAi  uiiou  the  deponent  j  dcpon««ho 

ve   John    Hnddowc,    in   Douglas,   tieveniU 

^mes,  in  anne^,  urih  ihereU'lls  the  tyme  far- 

^d»  and  iliat  ho  Wris  culti^d  a  cnptniti ;  .ilepmw 

aavre  Jaiives  VVhvtt,  in   lloiiju^hLSj  twentie 

net  in  armes^  rvding'  with  thu  reht^tls  thai 

Ime  ;    deporis  he  sawe  Williftiu  Fatconui^  in 

lamtlton,  walkiti^j  several  1  t^nie^  iti  nvnk  and 

J  w  ilh  the  rthells,  and  he  hade  a  hljuk  i'ringed 

fit ;    dpjious  he  bawe  Ilobert  Fteyiuing',   of 

IjiJthrnfin,  many  tyroes  with   the  rehells  on 

brsetiack,  with   butster,   pistolh,    aud   other 

nes,  and  savre  J  oh  a  Cochran,  of  Craigp, 

ikways  In  com[»any  with  the  rebelLs  in  armes, 

1  John  CardufTf  tn  8traven,  and  John  Whit- 

ve,  of  Bothwi'bheills,  in  arroea,  with   the 

J  screrall  tvmes,  and  ali  this  he  aawe  be- 

ixt  the  ty me  ror«aid,  aod  knawes  the  persona 

bi  hiOM  deponed  agatnesl  parti cnlarhe,  and  thisi 

^1  tbe  trutn  as  he  shall  anitvrr  to  God. 

K,     Sic  Suhtcribitur,  J  a.  Hamilton. 

^^iFi/^iaiTi  Hamilion,  Yintner«  in  ITatntltount 
^Ved  fourtie-four  years,  m»ned,  purged  and 
•worne,  depons  he  knowe«  that  John  WtUon, 
Tounger,  of  Sloniepnth,  wreitter  in  t^nerk,  was 
to  company  tn  annes  with  the  rchells,  antl  that 
he  was  a  captain,  and  savre  him  severalt  tymes  j 
aod  lawe  Mr.  Tliofna*  Pilhins,  in  aiineR,  ne- 
wenM  tyracii  witJi  the  r^trllii ;  uud  .sav%e  Uoheit 
liookhart,  of  Birkhill,  in  arniti^tiit))  tJie  retiells 
ia  Haimltoun,  ond  Kavver;avin  !Inniihon,  of 
HiU,  in  amies  with  the  ri-belht  and  that  he  %rfls 
at  thb  deponent'ii  house  isevenill  lymcn  witfj 
others  of  tho  rchelU;  depons  he  sawe  Jame.^ 
Weir,  of  JohiifthitU  in  nrmes  with  the  rebcUM 
rtyiny  tynie^,  and  that  he  hrovij^hi  the  caniian 
from  the  marques  of  Dou'^Ias  Loa^t*,  and  that 
lie  took  down  the  rehelb  hrads  at  HainiUon, 
^■id  took  ane  liorsc  from  ih  Ts  Htable 

^mt  sahtMuh  ni|fht  tb&t  thf  \  wer  as- 

^ntlted  at  llruincloge,  and  Hilu    f  ^»hn 

!Iaddow,in  Onuf^ULS^  marme*^,  v^  :iii^ 

at  liamiltoD,  and  t«  -•   •  -  Mean  »  i,^j,..,mi  nnd 
oiMBmaudii  a  ix>p  iiorw  he«awe  lii>- 

brri  Fleytuin^i  ol    .   ^  f^u<l  Inhr,  (  uru- 

duC  in  Htmirefi,  in  ul  ^^' 

v«rall  tymea ;  def)on«  I  on-* 

f<»rBaifl8Y  atid  the  tyme  that  he  «aw  tlirnt  wis 
ikireing^  the  M-b^Hion,  Wtwixt  the  fimt  aniT 
^*  *  \  M<;otid  of  June  ;  and  thi*  in  the  truth 
b««KaU  answer  in  God,  nnd  the  plare  uher 
^Mwt  tbem  vtaa  Hatudinun. 
Sic  Subtirtlntur^         \V  n  UAin  H  AMitTow, 

John   WiUon^  wreitter,  In  IfanuUoun,  ageil 
tDtie  nyn  yean^  itiarit!d«  piirinHi  and  stvornc, 
be  Mwe  Jiditi    WiUuti,  wmtter,    in 
,  Wr.  Thmn««  PJlff^fiH,  Hidi<«rt  Ij^ic'khan 
BirkI         '  ^  II,  cit   ilill,  Jamrt 

]i*<|shu  .all  innmiciwith 

lb*  Pdbtti*  at    UauulitJii  au'l    ^'        '     in  Muir, 
•a4  iunm  M'Uut»aitie  wn*^  u  Muck 


first 

I 

air«^i 


h4^1tfl 
!infi 


John  Haddowe,  in  Doui^las,  ryd  like  a  eaptatu^ 
liprin  the  ht«iii  «d  a  irotip  «f  ifie  rehetU  »*»ferall 
tyme^,  and  aawe  JuiiieK  Witytt  in  Dotis^laii  and 
VVilliutti  Falconnr  in  Uatnriton  in  armr-i  with 
the  rct>elLs  and  isawc  Arthur  TnrbH  exerrised 
hy  the  relK-lla  and  in  ther  company,  and  wine 
Itohert  Fleyinini;  of  AiK^hintine  several!  tyn»e* 
in  armes  wnh  the  rebclls,  finii  de|K»ns  he  sawe 
the  person ti  forsuid^  with  the  tehells  in  unnefs  nt 
Haiiiittnn  and  Haniihou  Mihr^  bctwict  the  first 
and  t  IV  en  lie  f^eeond  uf  Jnne  1679,  and  Jan 
M'Quharrie  wn*i  in  armes  with  the  rehells,  i 
til  is  is  the  truth  as  he  shall  answer  to  God. 
Sic  Subscnbttur^  Jo,  WilsuHE.] 

Thomas  Strintoun^  in  IhimlUoun,  ai» 
tu#*ntie  four  years,  uimiarried,  pureed  and 
fiviorne,  deponnhe  sawe  Janies  Weir  <dJ«dui9- 
hiM,  and  John  11  ad  do  we  in  Douglas  in  armea 
with  the  rebclls  .it  HamilUuiu  inuny  tvmc^.  and 
sawe  William  rafcouar  and  Aritiur  Farbet  iu 
armes  witlj  the  robells,  depons  he  sawe  Hiomas  \ 
Patton  at  the  obJ  Kiik  of  Caaibusnclban  in 
ariues  with  the  rehehi«  nt  Homiltoun.  l>epimB 
he  sawe  John  VVhillawe  in  BothweUfiiells  and 
John  Fatci-son,  ther  in  arines  with  the  reb^^H^ 
at  HamdtQun  muir.  Depons*  he  sawe  these  pc 
sons  in  annes  with  the  rebells^  betwixt 
fif^t  and  I  wen  tie  second  day  h  uf  June  ]<»T9,  !ii  _ 
kncwe  ihcm  parli<'til.)Hfe*and  tins  is  the  tiutb 
as  be  sihali  answer  to  God. 

Sic  SuhcribitHr^        Tno.  STivtivsa^^.  J 

Jatfteg  IWt  in  FlamlUouo,  aged  fourtic  fi^ 
yeari,  mai'iett,  pureed  and  gwoioe,  dcnoris 
sav^e  Jnme.s  Laurie  wreitter    in  Lanetlf  \u  tfc 
deponents  house,    in   Hiimiltouu   in  cornp:iiij 
With  two  of  (he  rebeUsdiinkinij  I  he  SalltJiinyt 
ni^bt  be  for  the  defate  at  Bolhwelbiid^i^e,  depo 
he  suwe  Thomas  Lauehlan,   merchant  in   L 
nerk  ae?eia)I  tytnes  iu  urines  with  the  rebellsil 
IlamiltouD,   aud    saw€   xllckunder  A nde r^oi^ 
shoemaker  in  Lanerk,  weveiall  ti(ue*  iu  armf  ^ 
with  the  rebells  at  flamihnun  ar»d  sawe  Huj^li" 
Somerraill  of  Urrats,  jmd  J*hn  Hutcheson   of 
Harelawe,  severall  i)  uie-s  in  arnios  witli    ll»it 
rebellh  at  Hamiltoun  and  saw.ltdtu    llsidduut, 
and   James  \Vhytt  in    Douglas   LiKkhuit   ttC 
HirLhill  Kobert  FIcymintr  <if  Auehinfuie  uud 
John  (J<KThr»n  of  l!raiife,  lykwiiys   in  armes 
>^  ith  the  re {>elk^  depons  lie  NMwe  «tl  the  forvuid 
persons  ui  IJamiUoun  tietwixt  the  first  of  June 
that  Urnmeto^X'  tvuB  ioUj^ht  and  the  tweniie 
seconil  ot'  June,  that  the  rehells  wer  detkte  at 
Ilothwdbrid$(e  and  knev«e  ikii  ni  jMriteuhube, 
hutknoweanot  if  Juine*  L»wrie  hade  aimes, 
and  thia  is  the  truth  as  he  ^hall  nntswer  to  God. 
Sir  Sttbucriiutur         Jai^ics  Tod. 

Jo  fin  Leckic^  raeasenjj'^^r  in  Tlamiltoun,  ag^e 
fourtie  three  yeai'R  luaricd,  purj^ed  and  sviortic 
dt^pouK  he    vawe    Thoiuan    LuiiehlaUp    Alfi; 
under    Andertion,    shc»einaker    in    Lanerk, 
arine<4    %vith     tli#  it*tie!ls    NrreniH    tymi^ 
llamiltouUf  ami  that  Aleimtider  Atideiitoti  w« 
;i  lievtenant«  nnd  «iawt  Jmt  <•(  Whi^tt  r^ditif;  i 
Jidin  llHihloweii  troop,  aud  hiwc  John  Hu^ilj  < 
WipdbiU  tt  tinBUlw  Mil  liBnilipii'miiir  t^ 


S79]  33  CHARLES  11.    Proceedings agaimt  the LanerkBhire Men,     \2SD 

gWSf  shoemaker  tber,  all  io  arma  with  the 
rebells,  at  Lanerk,  the  tyme  of  the  late  rebel- 
lioD. 

Sic  Suhscribilur,        M.  CuFFORD. 

James  Crawfurdy  balyie  of  Lanerk,  ageA 
fyi'tie-fyve  years,  pure^ed  and  svrorne,  depone 
that  tlie  day  that  Bothwel -bridge  was  fought, 
he  sano  David  Whvt,  smith  in  Laiierk,  in 
arnies  with  the  rebells,  in  Lanerk,  eftcr  the 
delate;  depons  lie  sawe  Thomas  Lauchlan, 
and  William  Ferguson,  in  Lianerk,  sereraU 
tynies  in  amis  with  tiie  rebells,  betwixt  the 
tirst  and  twentie- second  dayes  of  June,  and 
sawe  John  SScnipIe,  mason,  and  William  Ped- 
zean,  mason,  in  Lanerk,  in  armes'  with  the 
rel>ells,  several!  tynics  the  place  and  tvme  for- 
said ;  and  this  is  the  truth  as  he  shall  answ^ 
to  God. 

Sic  Suhscribitur^        J.  Crawfurd. 

Jame$  Uautie,  in  Lianerk,  aged  fyftie-eex 
years,  marieil,  purged  and  sworne,  depone  be 
sawe  Gideon  Weir,  gfune  smith,  in  Laneik, 
with  horse,  armes  and  ane  carrabin,  in  company 
with  the  rebells ;  depons  he  sawe  itobert  Ha^i* 
dowe,  youngest  son  to  Robert  Haddowe,  ahoe- 
maker,  with  a  sword  comein^  back  to  lianerk 
on  the  sabbath  day  the  rebelh  wer  defate  at 
Hothwel-hridge ;  and  this  is  the  truth  as  he  shall 
unswcr  to  God. 

Sic  Sabseribitur^        Ja.  Haistib. 

William  Ihedale,  late  balyie  of  Leoeik, 
auedfourtie  eight  years,  maried,  depons  be 
sawe  John  Jade,  in  Nemphler,  in  company 
with  some  of  the  rebells  in  Lanerk,  in  armes 
the  tyme  of  the  rebellion  1679. 

Sic  Subscribitur,        Wiluam  Twedale* 

John  Allan,  in  Hamilton,  aged  threttie  eigbt 

years,  maried,  purged  and  sworne,  depons  he 

Kuwe  William  Park,  fewar  of  Lairfad,  in  armes 

with  the  rebells,  within  the  toun  of  Hamilton. 

Sic  Subscribitur,  John  Allanb. 

William  H9attie,  in  Lanerk,  aged  twentie 
four  years,  maried,  purged  and  sworoe,  depom 
he  sawe  Wiliam  Dick,  in  Lanerk,  on  hone- 
back,  .with  a  sword  about  bim,  ry ding,  with  ifae 
rebells,  and  sawe  David  Gibson,  in  Laneriri 
rydin^  on  horseback  with  the  rebells,  and 
James  Park,  weaver,  with  the  rebells  iaai 


armes  with  the  rebells  and  -saw  John  CarndofT 
in  Straven,  and  Robert  Stcill  in  Staine,  in  armes 
with  the  rebells  at  Hamiltoun  and  Hamiltoun  • 
muir,  de{>ons  he  sawe  them  l>etwixt  the  first 
and  twentie  second  dayes  of  June  1679,  and 
knewe  them  particularlic  and  this  is  the  truth 
as  he  shall  answer  to  Go<l. 

Sic  Subscribilurf        Jo.  Leckie. 

Bogcr  Cleiland,  in  Lanerk,  aged fourtie years, 
mariecl,  pureed  and  sworne,  depons  he  sawe 
Archibald  Symson  in  Laneik,  David  Whytt 
smith  ther.  Win.  Ferguson  th<*r,  Gideon  Weir 
thcr,  David  Gibson  ther,  Thomas  ln<;lis,  shoe- 
maker ther,  all  in  armes  with  the  rebrll$,Alex. 
Balyie,  in  Lanerk  with  the  rebells  once  but 
not  in  armes,  and  sawe  Alexander  Anderson  in 
Lanerk,  John  Pumphray  ther,  John  Jack,  in 
Nein])hler,  iu  armes  with  the  rebells,  and  depons 
he  sawe  one  who  was  called  Hugh  Somervaill 
of  Urrats  in  annes  with  the  rebells,  and  sawe 
John  Whytt  of  Neuk  in  armes  with  the  rebells 
and  that  he  sawe  them  at  Lanerk,  Hamiltoun 
and  HaniiUouu-inuii-  betwixt  the  iirst  and 
twentie  second  dayes  of  June  1679,  and  this 
is  the  truth  ns  he  shall  answer  to  God,  depons 
be  cannot  wreitt. 

Sic  Stibscribitur,        R.  Maitland.  I.  P.  D. 

Gavin  Monty  in  Lanerk,  aged  fourlie  years, 
unniaricd,  purjjwl  and  swonip,  depons  he 
sawe  ^Viiliaiu  l>ick  in  Lanerk,  with  the  rebells 
in  armes  in  or  about  Glusji'owe  and  sawe  Ar- 
cl^iSald  Symson  in  Lanoik,  and  David  Whytt 
smith  tlicf,  Thomas  Lnuchlan  ther,  William 
Ferguson  ther,  Gideon  Weir  ther,  James  Park 
Ihcv,  John  Sein))le,  mason  ther,  Hugh  Ker, 
Btm  to  Williairt  Ker,  of  Bcdronald,  Thomas 
Iiiglis,  shnctnaker  in  Liiiork,  Robert  Haddowe 
youiigor  in  Laoerk,  John  Buckle  ther,  and 
John  Pumplirny  all  in  armes  with  the  rebells 
betwixt  the  first  and  twtntio  second  dayes  of 
June  1C)7[>,  depons  ho  sawe  Thomas  Hinsel- 
wood  in  Lanerk,  and  William  Pad/eau,  niasun 
thrr,  Luke  GrcinsliielU  of  Hojjsoastle  all  in 
amies  with  the  rebells  and  knewe  them  par- 
ticularlie,  and  this  is  the  truth  as  he  shall  an- 
swer to  God. 

Sic  Sitbscribiturf        Gavin  Moxt. 

Archibald  lUmelwoody  in  Lanerk,  ag-ed 
founie  eij^ht  years,  maried,  i)urijed  and  sworne, 
depons  he  siwe  ^Viiliam  l>ick  rydiiiyf  out  ol' 
tlw  t:i'j:)  of  I/mork,  with  amies  at  that  tyme 
tlr.;  r.  b.lls  wtT  in  arnies  iu  the  West  and  he 
Ka\«i'  ArcliiLald  Symson  rydini^  with  armes  at 
I'lat  tyme;  de;)ons  he  sawe  John  Buckle  goeini^ 
from  tliciiuinOr  Lanerk  with  arnuis  the  tyme 
fors.Lid.  depons  he  suvvo  Johu  Hulclieson  of 
Harclawe,  rylinif  wi:Ii  annes  from  the  West 
lioiiK^wards  the  tyme  the  rebells  wer  In  armes, 
and  [his  is  tlu;  truth  as  he  shall  answer  to  God. 

Sic  Sub\cyifnlury      AacuiUALD  Hinselwood. 

Mark  Ciiff'ord,  in  lianerk,  aged  threttie 
three  years,  niarietl,  purj^ed  and  sworne,  de- 
pons he  sawe  David  Whytt,  in  amies  with  the 
rebelLs,  in  lianerk,  and  sawe  William  Ferguson, 
Jjphli  8eraple,  mason,  in  Lanerk,  Thoinai  In- 


on  foot,  and  sawe  Thomas  Inglis,  id  aro 
with  the  rebells  ther,  and  sawe  John  BueUc^ 
Thomas  Hinselwood,  John  Jack,  in  NempUVv 
William  Padzean,  mason,  in  Lanerk,  all  m 
armes  with  the  rebells,  within  the  toim  of* 
Lanerk,  in  June  167£>  ;  and  this  is  the  truth  m 
he  shall  answer  to  God.  .      . 

Sic  Subicribitur,  William  IIuTlB. 

Jama  Sliman,  in  Lanerk,  aged  threttie  njB: 
years,  maried,  purged  and  s\%ome,  depons  oe- 
!?awe  James  fjourie,  wreitter  in  Lanerk,  rydi 
throwe  the  touu  of  Lanerk  iu  comany  wilfa  I 
rebells,  and  a  sword    about  bim, 
HuD^h  K.er,  son  to  William  Ker,  of 
ryding  with  the  rebells  in  armes,  in  the  U 
Lanenc,  the  tyme  of  the  rebdlion  ia  taltl 


for  Treasm, 
T9;  rodllmisidetrutb  as  he  sbftU  answer 

Sic  Suhicribilur,  James  Si^an. 

Jamct  Watmn^  taylor,  in  Lanerk*  ageil 
biinielhree  years,  maritid,  ported  and 
worne,  depons  he  sawe  David  Gtbsoo,  in 
Aoerk,  in  armes  Hith  the  rebella,  ryding 
hrowe  Lanerk  in  June  167^,  and  sawe  Ar- 
bibakl  Sympion  1j  kways  in  armi««  with  ihwi 
he  Mid  lyoieand  place*;  ami  this  is  the  truth 
i  be  shall  answer  to  God* 

Sk  Subscribiturt  James  Watsone, 

James  Wh^ii^  in  Lanerk,  aged  thrctlie  lex 

Peai'jdy  married^  sHome,  depons  he  sawe  Wil' 

pnm  i>ick,  in  Lanerk,  iu  armes  in   his  retume 

orn  Bothwclhridge  the  <lay  tJie  rebells  wei- 

iefate  thvr ;  and  thia  b  the  truth  as  he  shall 

usM'er  to  God. 

Sic  Suhicribiturt  James  Wbytt. 

_v——-ih  Coupar^  mcssengfer,   iu    Kilbryd, 

l    sworne,    depons    he   sawe  John 

|1  >,,*,....  ,;u,   of  Rogertouii,   rydiug^  with    the 

ebells  throwe  Rilbryd,  and  a  sword  about  him, 

;f>er  the  «x»(iHictatl>rumcloge,  and  sawe  John 

A  ilson,  of  Hi^h6ctt  in  ariiiea  with  them  the 

anietyme  and  place,  and  sawe  Robert  8tei> 

rin,  i%;wer^  in  New  I  and » in  armes  with  the  re- 

A\%  on  Thursday  efter  Drumckige  in  June 

1679,  aud  this  is  the  truth  as  he  shail  answer  to 

lod. 

Sk  Suhtcribiturt  Ji:remie  Cocpab* 

Wdliam  Follock^  id  IlamiltOD^  aged  tweotie 
^bt  ycara,  maried,  purgwl  and  swome,  de- 
ns, he  sawe  Jamc!^  M'Qu hairy,  of  Scorie- 
bolme,  in  armes  with  the  rebel  Is,  m  Hamiltouo, 
ktidsawe  Arthur  Tarhtt,  in  llamiltounf  and 
CDavin  Weathenipoon,  of  Qeatberie  kaowe, 
ohert  Ooodwiue,  iu  Glas^rowe,  a  horseman^ 
ill  in  armes  with  the  rehelts  at  Haauhon-muir, 
ujd  «awe  John  Grey  of  llum^avill^  aud  John 
""jitlawe  of  Uothwclsheitbi,  \ViHiam  Ward- 
•  of  Wester  C'aldcrhead,  all  iu  armes  with 
'  elU,  in  June  1679  ;  and  tin*!  is  tbelrutli 
be  shall  answer  to  Gfxl,  and  depone  he 
«»wefl  nothing  a^  to  John  Marshal),  in  Ua- 
Dilton. 

HkHubtcribUur^  Wilem  Polok- 

JLohert  Thontpitm^  miliar,  in  t^^mehago, 
^ed  Iwentie  \h\it  yeam,  married,  depons  he 
awe  John  Whylt,  of  Neuk,  jo  armes  with  the 
ebetls,  betwixt  LrsoiahaGTo  and  Hcunilton*  the 
I  of  ibf  r«bpnion»  Mwixl  the  first  u\i 
r  and  twitttie  seeumi  day  iheruf  ;  »ud  this 
I  the  truth  av  he  %\m\\  aiiHUfr  to  Go<J,  depons 
B  cat! not  wrvitt 
$ic  Sublet  iUiur, 

John  HViV  in   ** 


A.  D.  1(?$I* 


rs 


fears,  marled. 
awe   John   l*ui 
i  liyt,  ot    Netik, 
urmes  ^*'f''  »* 
iblbc 


Ja.  Foous. 

'*  ^1   twentie  four 

<'ruc,  th'puns  ho 

ijnii  t ,  .    ^ij.rvun   W<ir,   Johit 

Jolm  (  ot.'hrnn,  of  Craig*^^  ol) 

'     n  belts  uiJunr  1079  ,  and 

i»!  shall  answer  to  God. 

J.  Wua. 


William  Wkarrie^  in  Scorrieho!me»  aged 
fourtie  years,  married ,  purged  und  sworoe,  de- 
pons he  sawe  John  Sleill  of  Oier  water  bead, 
coroeing  and  goelng  to  the  rebelU  befor  the 
delate  at  Bothwel  bridge*  nnd  sawe  him  eiW 
the  break  at  Bothwel-biidge,  wher  he  was 
skulking,  and  this  is  the  truth  as  he  shall  an- 
swer to  God  :  the  deponer  was  purged  of  par* 
tiall  counrrilK 

Sic  Suburibitur,  Wiixam  QuHARlK. 

William  Weir,  of  Clerksloun^  aged  threitie- 
sex  ye^rs*  maried,  purged  aud  sworue,  de* 
pons' he  sawe  John  Whytt,  of  Neuk,  Thoraai 
Linn,  youna:er,  of  Bloirachining^  aud  Jamei 
Whytt,  iu  Douglas,  all  in  armes^  with  tiii^  re- 
bells,  in  June  1679 1  and  this  is  the  truth  as  be 
shall  answer  to  God. 

Sic  Subicribitur^  WiLU  Weir. 

Andrew  Robert  son ,  in  Belihill,  aged  fourtie- 
four  years,  marietl,  purged  and  sworn,  depons 
he  sawe  Luke  Greiusheills,  of  Hog*s-castle,  io 
armes,  with  two  tioups  of  the  rebells,  at  the 
Sbawehead-Muir,  on  Sunday  befor  the  breali 
ac  Bothwel- bridge  j  and  this  is  the  truth  as  be 
shall  answer  to  God, 

Sic  Subscnbitur^      Andrewe  Robcbtsoh. 

Johrt  Hamilton^  in  Lowe,  watter^  aged  twen- 
'  tie* sex  years,  marled^  purged  and  sworn,  de- 
pones bf  sawe  Arthur  Tarbet  iu  ILimilton,  in 
armes  with  the  rebells,  in  June  1679 ;  and  this 
is  the  truth  as  he  shall  answer  to  God,  and  de- 
poDS  he  cannot  wreitt. 

Sic  Subscribitur,     R,  MArrLAND,  I.  P.  D, 

Robert  Wcir^  iu  Hamilloun,  aged  fourtie 
years,  married,  purged  and  sworn,  depons 
nihil  nwii, 

John  Millar f  of  Milnheugh,  aged  tbrettre- 
sex  years,  wtduiufit  purged  and  sworn,  dcpooi 
he  sawe  John  Millar,  younger,  in  lAjngCathcr- 
wood,  with  the  bodre*of  the  rebeiU,  and  a  gone 
on  his  shoulder,  eight  dayes  efkr  the  conflict 
at  Drumcloge  ;  deponti  he  sawe  John  WiUon, 
of  Highflett,  ryding  throwe  the  Kirktoun  of 
Blaotyre,  with  a  sword  aUoiit  hiiu,  towards 
Huiiultoun-Muir,  wher  the  rebell*i  then  wer» 
but  depons  ther  was  no  person  in  his  company  ; 
aud  thiii  i%  tlie  truth  as  ne  shall  answer  to  God